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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 its owner may interfere with the enjoyment and safe use of neighboring property.

Questions often arise about the ownership of trees that grow on or near a boundary line between adjoining properties. Who has the legal responsibility for their care or removal? If the neighbors disagree over what is needed, whose interests should take priority?

Answers to these questions are often uncertain because the factual circumstances and equities will vary. They can also depend on the locale since state laws and local regulations differ. But the analysis normally begins with a determination of the tree’s ownership.

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 the trunk, presumably at ground level. If the trunk is located entirely on A’s land — even if most of its limbs and branches extend across the boundary 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 the tree’s removal would have on his neighbors. Luke v. Scott, 187 N.E. 63 (Ind.Ct.App. 1933).

In resolving disputes over trees, Indiana courts have recognized and applied the following additional principles:

• Private landowners are generally allowed the free and reasonable use of their property provided they do not interfere with the safe use and enjoyment of neighboring property. Laws of nuisance allow those adversely impacted with recourse in court against offending landowners.

• Even if a tree that is located on A’s land is dead, unpleasant in appearance or somehow poses a threat to B’s land, B is prohibited from coming onto A’s land to trim the tree or remove it. Without A’s consent, entry would be considered a trespass. But if the trimming appears to be justified, can be accomplished entirely from B’s property, and can be performed in accordance with sound pruning practices (see publications of the International Society of Arborists), B is allowed to do so and should not be liable for any adverse impact on the tree. Alternatively, B could bring suit against A to recover actual damages resulting from the overhanging limbs or encroaching roots. Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind. Ct. App. 2011). But the difficulty of proving actual economic harm from encroaching limbs or roots often makes a damages suit impractical.

• If limbs from A’s tree extend over the boundary onto B’s land, B has the right to trim or remove the limbs, but only to the extent they encroach into B’s air space. Luke v. Scott, 187 N.E. 63 (Ind.Ct.App. 1933). The same rationale applies to tree roots that encroach onto neighboring property. Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind. Ct. App. 2011). B may wish to cut the encroaching branches or roots to make room for a fence, new room addition or swimming pool or to stop the buckling of his patio or driveway. But trimming limbs or cutting roots merely for spite may land B in legal trouble if the tree should die from the trimming. Also remember that local ordinances may regulate how close to a boundary line structures or fences may be erected.

• If it can be proven the 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 a nuisance and order it to be abated by allowing the condition to be eliminated. That will 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 the theoretical possibility of harm from a leaning tree is not likely to be enough to warrant judicial relief in advance of an incident. See International Society of Arboriculture, A PHOTOGRAPHIC GUIDE TO THE EVALUATION AND HAZARD TREES IN URBAN AREAS (2nd. Ed. 1994)

• In the situation where the tree’s trunk straddles the boundary line of 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 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 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 associated with a neighboring tree is not likely to give rise to a successful claim against the tree owner. That is considered a normal incidence of property ownership.

• If A’s tree or its large limbs fall onto B‘s house or into B’s yard, the responsibility for damage or clean-up costs normally depends on whether A was at fault for the incident. If the tree was healthy and fell because of a storm or act of God, A is not normally at fault and the loss will be borne by B as a normal incidence of property ownership. B’s own homeowner’s insurance may provide some assistance with clean-up costs or damage, likely subject to a deductible. But because Indiana law obligates A to reasonably and periodically inspect his own property for dead or weak trees that pose a risk to others, A may be at fault and responsible for the harm. Marshall v. Erie Ins. Exchange, 930 N.E.2d 628 (Ind.Ct.App. 2010). 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.

• Indiana law regarding the measure of damages for one’s wrongful harm to or removal of another person’s tree is not at all clear. In general, the extent of one’s liability for damaging another’s property will depend on whether the harm is temporary or permanent. If temporary, the reasonable cost of repair is normally recoverable. If the harm is permanent, 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 Ed. 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). A victim of tortious conduct cannot recover more than his actual damages or end up better off than he was before the wrongful conduct. Beyond that, attorneys working with professional arborists can present and defend against tree damage claims. Remember that judges and juries have considerable leeway in fashioning an equitable remedy and the final outcome is often influenced by their view as to the reasonableness of the parties.

• The care required of the owner of a tree located close to a public roadway 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, the greater the risk of harm from a falling tree and, 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. See. e.g., Patterson v. Seavoy, 822 N.E.2d 206 (Ind. Ct.App. 2005); Marshall v. Erie Ins., 923 N.E.2d 18, clarified on rehearing 930 N.E.2d 628 (Ind. Ct.App. 2010); Miles v. Christenson, 724 N.E.2d 643 (Ind. Ct.App. 2000); Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991); May v. George, 910 N.E.2d 818 (Ind. Ct.App. 2009).

• 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 near a roadway may sometimes obstruct a motorist’s view of other traffic, especially when approaching 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 obstructions on his own property. Reece v. Tyson Fresh Meats, Inc., 153 N.E.3d 1193 (Ind.Ct.App. 2020) (trees); 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 lines and facilities in the public road rights-of-way. IND. CODE § 8-1-2-101 and § 8-1-20-28. This includes the right to trim trees where necessary to avoid interference, but trees cannot be removed 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 energized lines as needed to provide reliable and safe service. Because vegetation management is usually performed in multi-year cycles, the utility is entitled to 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 access to provide service and perform needed 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. 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 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. 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.

Please remember that these principles established by statute, ordinance, regulation or the common law are always subject to change.

Because the location of a boundary is often in dispute, a professional land surveyor may be needed to establish or confirm the actual line. Making uneducated assumptions about the line can be risky. But even licensed surveyors may disagree about a boundary’s location, especially where the deed record or a past survey is an old one. Further, longstanding maintenance practices or the presence of fences and natural objects that have been treated as the boundary can affect the determination.

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 an excellent Website with many 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 particular circumstances. (Last revised 11/16/20)

 

 

 

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