BOUNDARY TREES IN INDIANA: OWNERSHIP AND RESPONSIBILITY

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 that grow 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 should take priority?

Answers to these questions will vary depending on the circumstances and equities of the situation. The answer can also depend on the locale, since state laws and local ordinances 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 position of its trunk. The author presumes this determination is made at ground level, but that point may not be clear either. If the trunk is located entirely on A’s land — even if most of its limbs and branches extend across the boundary line or its roots encroach onto B’s land – A owns the tree. Absent a contract or easement that grants property rights in the tree to another person, A has the sole and exclusive right to decide whether to preserve the tree or cut it down. And that is generally the case regardless of A’s motivation or reasonableness or the impact removal of the tree 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:

  • Private landowners are generally afforded the free use of their own property so long as they do not interfere with the safety and enjoyment of neighboring property. Laws of nuisance are intended to afford those who are adversely impacted the opportunity to seek civil recourse in court against offending landowners who unreasonably interfere with that use.
  • Even if a tree located on A’s land is dead, unpleasant in appearance or poses a potential threat to B’s land, B is generally prohibited from using self-help and coming onto A’s land to trim the tree or remove it. Without A’s consent, such entry would be considered a trespass.
  • If the trimming is justified because limbs or roots from A’s tree extend over the boundary into B’s ground or air space, can be accomplished entirely from B’s property, and can be performed in accordance with sound pruning practices, B is 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 A have if B’s trimming is justified but it causes the tree to die? Here the law becomes murky. The answer might depend on whether B had a legitimate reason for his actions, for example to allow construction of a lawfully positioned fence, swimming pool or room addition or to eliminate a 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 the old Indiana case of Luke v. Scott, 187 N.E. 63 (Ind. Ct.App. 1933), recognizes the right of B to trim or remove the offending limbs, that court commented that if it results in the tree’s death there are circumstances in which B could be liable in damages. 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 A’s tree by neighbor B’s self-help cutting or removing roots that are encroaching onto B’s property, A has no basis for a lawsuit because B does not owe a duty to A to prevent injury to A’s tree. In Alvarez v. Katz, 199 Vt. 510, 124 A.3d 839, 842 (Vt. 2015), the Vermont Supreme Court reaffirmed that state’s long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact such trimming may have on the health of the tree).
  • Alternatively, instead of exercising self-help and running the risk of being sued for causing the tree’s death, B could sue A seeking an order allowing removal of a tree that posed an obvious and imminent risk of harm or 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 such a suit or the difficulty of proving actual economic harm from encroaching limbs or roots often makes a suit for damages impractical.
  • If it can be proven that A’s 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 by a storm — a court may find it is has become a nuisance and order it to be abated by allowing the condition to be eliminated. That would normally require the opinion of a professional arborist and written notice to the tree’s owner in an effort to achieve a voluntary resolution. Such a notice will also help you prove the owner’s actual knowledge of the condition should it later fall and cause damage. But even healthy trees are sometime hit by lightning or blown over in a storm, so the theoretical possibility of harm from a healthy but leaning tree is not likely to 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. Ed. 1994)
  • Where the trunk of a tree 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 such jointly owned trees, even minor trimming that could harm the tree should not be undertaken without communication with the co-owner.
  • Mere personal inconvenience or even actual harm to gutters, drains or landscaping from with fallen or blowing leaves, fruit, nuts, or other debris from a neighboring tree is not likely to give rise to a successful claim against the tree owner. That is considered a normal incidence and inconvenience of property ownership.
  • If A’s tree or its large limbs would fall onto B’s house or into B’s yard, the responsibility for resulting damage or clean-up costs normally depend on whether A was at fault for the incident. If the tree was healthy and fell unexpectedly from a storm or other act of God, A is not normally at fault. So, the loss will be borne by B as a normal incidence of property ownership. B’s own homeowner’s insurance may provide coverage for clean-up costs or damage repair, likely subject to a deductible. B may still have to clean-up the mess or repair the damage himself and then sue A for reimbursement. A’s own insurance may cover him for this liability if fault is established.
  • Indiana law obligates landowners in urban areas to reasonably inspect their property for dead or weak trees that pose a risk to others. One who fails to do so or take needed action that such an inspection would reveal may be at fault and held responsible for the 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 reasonable cost of repair is normally the measure of damages. If the harm is permanent, meaning it cannot be economically repaired, the measure is normally the diminution in value of the damaged property. But applying these general principles to trees is difficult because growing trees are a part of the land and their loss may or may not have a significant impact on the value of that land. Also, trees normally don’t depreciate in value over time as does a building or motor vehicle. It may not be possible to replace a lost tree with one of like kind, size and quality; even if it is, the cost of replacement can be quite expensive and exceed the value of the land on which it was located. See, in general, Council of Tree & Landscape Appraisers, Guide for Plant Appraisal (10th 2018).  One rule is 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). In other words, a victim of tortious conduct cannot recover more than his actual damages or end up better off than he was before the misconduct. Beyond that, 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 an equitable 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 will vary 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. Whether the land is residential, urban, or rural is also important in deciding the degree of 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; therefore, the greater the care and attention 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).
  • As between private landowners and the government having jurisdiction of a public roadway, the responsibility for tree maintenance depends 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.
  • Trees and vegetation growing on private land along a roadway can obstruct a motorist’s view of approaching traffic, especially near an intersection. As of the date of this update, Indiana courts have held 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).
  • 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 trees cannot be 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 as needed to provide reliable and safe service. Because vegetation management is usually performed in multi-year cycles, the utility may clear far enough back to allow for normal tree growth until the next inspection cycle. Absent emergency situations, utilities are expected to provide advance of intended work and to follow recommended pruning practices. And can be found liable to harmed customers and property owners when it fails to do so. 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).
  • 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 existence and 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 neighbor A is in compliance with applicable building codes, covenants, and zoning ordinances, he typically may build or maintain an otherwise legal, non-encroaching structure on his land despite the possibility of some adverse impact on neighbor B’s view or personal enjoyment of his property. Giller v. West, 69 N.E.548 (Ind. 1904); Justice v. CSX Trans., 908 F.2d 119 (7th Cir. 1990). Based on this principle, courts are likely to 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 justify a change.

It is risky to make uneducated assumptions about the true location of a boundary line, and a professional land surveyor may be needed to establish or confirm the line. But even licensed surveyors can disagree about a boundary’s location, especially where the deed record or a past survey is an old one. Also remember 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 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 that avoids 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 the 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. 327216v8 (Last revised 5/19/22)

 

 

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