Daily Development for Thursday, May 6, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

EASEMENTS; CREATION; PRESCRIPTION; TREE LIMBS: In a case of first impression, the Commonwealth Court of Pennsylvania decides that a prescriptive easement did not arise from encroaching tree roots and overhanging branches.

Koresko v. Farley, 2003 WL 23318662 (Pa.Cmwlth.).

The plaintiff argued that a prescriptive easement existed over the defendant’s land because the roots and overhanging branches of the plaintiff’s trees encroached the defendant’s property for more than 21 years. When the defendant’s approved subdivision plan threatened the trees’ roots and limbs, the plaintiff claimed unreasonable interference with an easement.

Citing Jones v. Wagner, 624 A.2d 166 (Pa. Super. 1993), the plaintiff argued that, while overhanging tree limbs can be a trespass upon a neighbor, if the limbs were present for a sufficient amount of time – i.e. the limbs satisfied the test for finding a prescriptive easement – then a neighbor’s removal of those limbs would be unreasonable interference. The defendant argued that the limbs and roots could not give rise to a prescriptive easement because they did not constitute “open and notorious” conduct.

Describing “open and notorious” conduct, the court quoted the Restatement of Property, noting that a use must be open and notorious so that one against whom the use is adverse may prevent continuance of the use. Here, the court found that the limbs and roots alone, absent, for example, their maintenance or the collection of fruit, did not represent an open and notorious use: “Neither roots below ground nor branches above ground fairly notify an owner of a claim for use at the surface.” Therefore, as a matter of first impression, the Commonwealth Court of Pennsylvania found that encroaching roots and overhanging limbs did not give rise to a prescriptive easement.

This case also presented an interesting policy question. That is, while the court’s result might encourage neighbors to ignore the needs of others’ trees, the opposite result might allow landowners everywhere to dictate neighbors’ by way of old foliage. This court stated that its result would lead to less uncertainty about the implications of enlarging trees. The court also addressed the policy question by praising and quoting the Court of Appeals of Kansas:
“The result reached here will be distasteful to all who treasure trees. The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each owners [sic] rights insofar as that is possible. Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.” Pierce v. Cassidy, 711 P.2d 766, 768 (Kan. Ct. App. 1985).

Comment 1: Right result. Terrible reasoning. Of course, underground roots can’t be regarded as “open and notorious.” But overhanging tree limbs certainly can. They are physical, visible, not trivial, and cross over the boundary. One other court, the New Jersey court in Manillo v. Gorski, 54 N.J. 378 (1969) (8 inch overlap of concrete walkway not sufficiently “visible” to constitute “open and notorious” adverse possession., bought into the notion that actual physical intrusions could nevertheless be viewed as not “open and notorious.” The New Jersey Supreme Court has cut back substantially on that notion now, and in the editor’s view, it was a mistake to begin with. Stump v. Whibco, A418895T1 (N.J. App. 9/3/98) (unpublished opinion) (the DIRT DD for 9/18/98) (chicken wire fence in grassy area can still establish adverse possession), where the court concluded that the Manillo rule as to “unnoticeable encroachments” would not apply to slightly overlapping fences.

The best explanation of the result here is that an overhanging tree limb, when it causes no injury or interference with use, clearly is permissive, and therefore no prescription runs.

Consider how the court’s example might apply in the case where tree limbs clearly are intrusive and interfere with use, and the owner of the affected parcel demands their removal. But the owner of the tree does nothing and no one sues for the prescriptive period. Here, one would assume that a prescriptive easement should arise, but under the court’s analysis, it might not because the limbs, though clearly unpermitted, were not “open and notorious.”

Comment 2: Another possible way to address this problem is to conclude that naturally ocurring overhanging tree limbs ought to be analyzed as a privileged trespass, and not a trespass, and therefore will not give rise to prescriptive rights unless and until they interfere for the use and enjoyment of the adjacent property. Once they do interfere, however, they would be enjoinable as trespasses. This is the same analysis some states give to low flying aircraft.

Comment 3: For a case holding that trees growing vertically into an avigation area do not constitute a public nuisance, see County of Westchester v. Town of Greenwich, Connecticut, 76 F.3d 42 (2d Cir. 1996) (the DIRT DD for 5/2/96)(Trees growing normally next to a County airport do not constitute a public nuisance even though their increased height over the years requires a higher, steeper approach to the airport runway than usual. )

Comment 4: What if the trees themselves are on your neighbor’s land? Is this different? In Indiana it is. See: Ballard v. Harman, 737 N.E.2d 411 (Ind.App. 2000) (the DIRT DD for 7/5/01) (Actual; hostile possession is established where adverse claimant planted 50 trees on the five foot strip of land and watered and maintained the trees for 18 years.)

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