### IN THE SUPREME COURT OF TENNESS EE AT JACKSON Novem ber 13, 200 2 Session
GLORIA B. LANE v. W.J. CURRY & SONS
Appeal by Permission from the Court of Appeals, Western Section

Circuit Court for Shelby County No. 301117 T.D. Robert L. Childers, Judge

No. W2000-01580-SC-R11-CV - Filed Dece mber 19, 2002

We granted review in this case to determine w hether a landowner can bring

a nuisanc e action

agains t
an adjoining lando wner

when tree branches and r oots from t

he adjoin ing land owner’ s proper

ty
encr oachupon and d amage the neig hboring landowne

r’s prop erty . The pla

intiff as se rts tha t encroachingbranches and roots from the defendant’s trees constitute a nui sance for whi ch she is entitled to seek

damage s. The defendant responds that the plaintiff’s sole remedy is self-help and, therefore, the plaintiff may not rec over for any harm c aused by the de fendant’s trees. The trial court andCourt of Appeals agreed with the de

fendant , and held

that an a djoining landowne

r’s only remedy is self-help and

that a nuisance action

cannot be brought to recover for harm caused by

encroaching tree branches and roots.

We have determined that self-help is not the sole remedy of an adjoining lando wner and t hat a nuisance action may be broug ht when tree branches and roots from the adjacent property encroach upon anddamage the

neighboring landowner’s prope rty. Although e

ncroaching trees and plants are notnu isances mer ely beca use they ca st shade, drop leaves, flowers, or fruit, or just because they encroach upon adjoining property either abov e or be low the g round, the

y ma y be regar ded as a nuisance when the

y c ause actual harm or p ose an imminent danger of actual harm to adjoining pr op er ty. If so, the owner of the tree or plant may be held responsible for harm caused by it and may also be required

to cut back the encroaching bra nches or roots, assuming the encroaching vegetation constitutes a nuisanc e. We do no t, howeve r, alter exist ing Tennessee law that the adjoining landowner

may, at his own expense, cut aw ay the e ncroachi ng vegetation to the property line whether or not the encroaching veg etation constitutes a nuisance o r is otherwise causing harm or potential harm tothe adjoining propert y. We further find that t

he reco rd in this c ase is suf

ficient t o establish liability for nuisance. Ac cordingly , the judgment of the Cou

rt of Appe als affirming the trial court’s dismissal of the case is reversed. The case is re manded to the trial court for a determination of damages and other appropria te relief.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Trial Court and Court of Appeals Reversed and Remanded1 It app ears b ased on p hoto grap hs co ntained in the re cord that the l imb came fr om a tree t hat was only a few f

eet from the plaintiff’s house

. -2- F RANK F. D ROWOT A , II I, C.J . delivered the opinion of the court, in which E. RILEY A NDERSON , Ad OLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W IL LI AM M. B ARKER , J R ., JJ., joined.
Elder Shearon, II

I, Memphis, Tennessee, for the plaintiff-appellant, Gloria B. Lane.
Robert A. Cox and Jame s F. Horner, Jr., Me mp his, Tenn ess ee, for

the def end ant -ap pel lee , W.J

. Curry & Sons.

OPINION

Factua l and Proc

edural Bac

kground

This case involves a di sp ute between adjacent property owners over harm caused by encroachingtree br

anches a nd roots. T

he plaint iff, Glor ia La ne, owns a

house in Me

mphis located next door to a house owned by the defendant, W.J. Curry & Sons. The plain tiff, who is 47-years old andunem ployed, has lived in the house all of her life. Her disabled brother lives with her. The defen dant’ s house is us ed as re ntal prop erty

and is occ

upied. The houses in the par ties’ neighborhood are at least fifty-years old and are situated close together.

The defendant has three large , healthy oak trees locate d on its property near the common boundary line with the plaintiff. The trees are much taller than the parties’ houses and have lim bs, described as “extremely protruding ,” that hang over the plaint i ff’s house. The defendant’s trees we re described as “overshadowing the

[plaintiff’s] entire house.” The plaintiff has had problems with the trees’ limbs and roots encroaching upon her property for many years. Her roo f, for e

xample, ha

d to be replaced in the late 1980s because the ove rhangingbranches did not al lo w t he ro of

to ev er dr y, causing it to rot. The plain

tiff testi fied tha

t prior to t hat time “ [e]very

roof and wall in [he

r] house had turned brown and the ceiling was just falling down. We would be in bed at nighttime and the ceiling would just fall down and hit the floor.”

In 1997, a large limb from one of the defenda nt’s trees located between the parties’ houses broke off and fell through the plaintiff’s roof, attic, a nd kitchen ceiling , causing rainwat er to leak into the interior of her home. 1 The wate r ruined the plaintiff’s ceilings, floor, and the stove in her kitchen. The plain

tiff is not phy sically

able tocut the limbs back that hang over her house, and she cannot afford to hire someone else to do it. Nor can she afford to repair the damage to the exterior and interior of her home, including the hole in her roof

.-3-

In addition to the harm caused by the overhanging branche s, roots from the defendant’s trees have infil trate d and c logged t he pla inti ff’s s ewer li ne, cau sing s evere p lumb ing p ro blems. The pl aintiff has tried to chop the encroaching roots over the year s, but they keep g rowing ba ck an d causing more plumbing problems. The plaintiff has not been able to use her toilet, bathtub, or sink in two y ears be cause of

the clog ged sewer pipe s. She must g o to a neighbo r’s house to use the restroo m. Raw sewage bubbles up into her bathtub, and her ba throom floor has hadto be replaced because her toilet continually backs up a nd water spills onto her floor. Neighbors have complained to the plaintiff about the smell of sewage coming from her property . The plaintiff testified regarding the condition of her

home that “every

thing is all messed up. I can’t ba the. I can’t cook. I don’t wa

nt people coming t o my house be cause it

has odorsin it, flea s, flies, bugs. I t’s just been awful for me.” The plaintiff is under the care of a psy chiatrist and takes medication for emotional problems. She testified that she may have to move out of her

house because she “just can’t take too much more.”

After the defendant’s branch

fell through her roof, the plaintiff contacted Judith Harris, the
owner of defendant

W.J. Curry

& Sons, to compla

in about the encro aching

trees a nd to infor

m Harris of the damage caused by

the fallen limb. Harr

is sent a tr ee trimming compa

ny t o the prop erty

to cut back the overh anging limbs , but this proved unsatisfactory because branches high up in the tree s were not cut, and those that were cut grew ba ck. Harris eventually

told the plaintiff that she, the plaintiff, could trim the branches or roots, but that Harris no longer felt any responsibility to remedy the situation.

The plaintiff subsequently filed suit in Gener al Sessions Court seeking dama ges to the exterior and interior of her house and plumbing sy stem caused by the encroach ing branches and roots. The Genera

l Sessi ons Court found in favor of the defendant. The plaintiff appea led the adverse judgmen t to Circuit

Court. Af

ter cond ucting a bench tr ial, the Circuit Court found that the plaintiff was ph ysically and finan ciall y unable t o have the ov erhangi ng b ranche s cut or the ro ots destroyed. Nonetheless, the trial court concluded that the plaintiff’s sole remedy was self- help and that the defendant’s trees could not constitute an actionable nuisanc e. The trial court explained that altho ugh it was “certainly a serious situation that the plaintiff has not been able to use her bathroom for two years . . . the se three trees are alive and living and they do wha

t trees normally do. The

y produce branches and grow and they produce a root system. And eve n though you trim the bra

nches back or you tr

im the roots back, they a

re going to produce more br anches and more roots.”

On appeal, the Court of Appeals agreed w ith the trial court’s finding that the plaintiff was financi ally

and physically

unable to engage in self-he lp beyond what she ha

d already tried without
success

. Nonetheless, a fter noting that “the three oaks at issue are viable, he althy, and innoxious trees whose natural growth is ac companied by the extension of their branches and roots over and into” the plain

tiff’s pr operty , the inte

rmediate court concluded that

the plaintiff’s only remedy was self-he lp and that her nuisance action could not be sus tained. Ac cordingly, the Court o f Appea ls affirmed the trial court’s dismissal of the case.-4- Analysis

I. Granberry

v. Jones

In finding that the p laintiff

’s only remedy was self -help and that a

nuisance claim cannot be brought for harm caused by

encroaching tree bra

nches and roo ts , both lowe r courtsrelied o n this Court’s de cision in Granberry v. Jones , 216 S.W.2d 721 (Tenn. 1949) . In Granberry , the parties ownedresidences on adjacent lots. The defenda nt pl ante d a hedge row on her proper ty near the
common boundary line, which e ventually g

rew to a height of twenty

feet. Branches and

foliage from the defendant’s hedge encr oached upon the plaintiff’s property and rested against his house. The plaintiff alleged that thehedge

row was a

nuisance because its branches and foliage blocked the view from his windows and created a sanctuary for insects . He also alleged that damp conditions associated

with the hedge caused the decay of his window sills, a wall, and a fence. The plaintiff sought an order requiring the defendant to either re move or trim the hedge. He also sought an award of damages. Id. at 722.

This Cour t held in Granberry that the plaintiff “had the legal right to cut any branches o r folia ge which to any extent hung ove r his soil from the hedge growing upon the a djoining land.” Id. at 722-23. In reaching

this conclusion, we relied on the then prevailing rule that “no landowner ha s a cause of action from the mere fact that the branches of an innoxious tree, belonging to an adjoining landow ne r, overhang his premises, his right to cut off the over hanging branches being

considered
a sufficient remedy .” Id. at 723. The ration ale for the rule was that a landowner h as the “liberty to
use his land, and all of it, to grow tree s [a nd] their growth naturally and reasonably

will be
acco mp aniedby the extension of boughs and the penetration of roots over and into adjoining propert y of others.” Id. at 723 (quot ing Michalson v. Nutting , 175 N.E. 490 (Mass. 19 31)). We a lso noted that lim

i ting a plaintiff’s remedy to self-help would avoid subjecting landowners to the “annoya nce, and the public to the burden, of actions at law, which wou ld be likely to

be innume

rable and, in many instances, pur ely vexatious.” Id.
However, we went on in Granberry to observe that “our conclusion . . . is without prejudice to whatever rights, if any , [the plaintiff] may have for recovery of the expense to which he may be putnow or hereafter in cutting the overhanging branc

hes or foliage.” Id. Thus, Granberry left open the possibility

of the inju

red land owner r ecover ing dama ges, or at least exp enses, after the landowner availedhimself to

self-he lp remed ies. This aspect

of Granberry

was not mentioned by the Court of Appealsin the present case, thereby leaving the impression that a landowner has no reme dy other than self-help, even whe n the encroachin g v eg et at io n c au se s a ct ua l h ar m t o t he ne ig hb or in g p ro pe rt y.
The plaintiff

here argues that

(1) Granberry

did not expressly foreclose the possibility of a nuisance action; ( 2) Granberry is distinguishable from this case because it involved a hedg e row which could easily be c ontrolled by pruning , as opposed to large tre es toweri ng over adjoining propert y with the potential for causing serious injury ; (3) Granberry did not involve damage caused by underground roots; and (4) cases decided in other ju risdictions since Granberry have allowed2 The defe ndant ’s est oppel a rgumen t was not r ais ed or decided in the t rial court. Therefore, the is sue i s wai ved. See In Re Adopt ion of E. N.R. , 42 S. W.3d 26, 31 -32 (Tenn. 200 1). Even if the i ssue had been raised, it would have avail ed the defe ndant

noth ing becaus e th e pla int if f at tempt ed sel f- help, unlike t he plainti ff i n Granberry , by chopping away what r oots she could. Thus, it cannot be s aid th at the plai nti ff merely sat on h er ri ghts. Furthe rmore, we note that branches and roots c an const itu te a continui ng nuis ance which ca n recur n o matter what the i njured part

y does by wa y of self-h elp, absent the remo val or d estructio n of the tre e. As o ne co urt has sa id, “give n the rath er unre mark able observati on that

trees will tend to grow, the trespass, even if remedied once, is bound t o recur ju st as soon as t he tre es
or shrubbery regenera te.” Jones v. W agner , 624 A.2d 16 6, 170 (Pa. Supe r. Ct. 1993) . Finall y, we note that although the defendant

asser ted a st atut e of limitations d efense in i ts answer t o the complaint and argued the issue at trial , the statute o f limitations issu e has n ot be en raise d on app eal.

3 See , e.g. , Drummond v. Franck , 41 S o.2d 268 , 273 (Ala. 1 949 ); Cannon v. Dunn , 700 P.2d 502, 503 (Ariz. Ct. App . 198 5); Bonde v. Bi shop , 245 P. 2d 617, 620 ( Cal. Ct. App. 195 2); McCrann v. Town Pl an a nd Zon in g Comm. , 282 A.2d 900 , 906 (Co nn. 19 71) ; Sterling v. W einstein , 75 A.2d 144 , 148 (D.C . Cir. 19 50) ; Gallo v. Heller , 512 So. 2d 215, 216 (Fl a. Ct . App. 198 7); W hitesel l v. Hoult on , 632 P.2 d 10 77, 1 079 (Ha w. Ct. A pp. 1 981 ); Lemon v. Curi ngt on , 306 P.2 d 10 91, 1 092 (Idah o 19 57) ; Toledo, S t. Louis and Kans as Ci ty R.R. Co. v. Loop , 39 N.E. 306, 307 (Ind. 1894 ); Pierce v. Cas ady , 711 P.2d 7 66, 7 67 (Kan . Ct . Ap p. 1985); Michalson v. Nutting , 175 N.E. 490, 491 ( Mass. 1931) ; (con tinued ...)
-5- nuisanc e cla

ims for the removal of encroaching vegetation and, where appropriate , for damages. The thrust of the plaintiff’s position is that the defendant’s trees constitute a nuisance.

The defendant responds that under Granberry th e plaint iff’s sole remedy is self-help and, therefore, the plaintiff cannot recover for any harm caused by

the defendant’s trees. The defenda nt assertsthat self-help is a sufficient remedy because the plaintiff is in the best position to prevent harm to her pr operty by e xercising self-he lp. The de

fendant a lso arg ues that allowing a cause of acti on every time a

tree or plant encroaches upon another ’s land would spawn innumerable and possibly trivial lawsuits. The defendant further arg ues tha t its trees should not be r egard ed as a nuisance because the trees are living, healthy trees doing what nature compels them to do --- produce bran che s and a root system. F inally, the defenda

nt claims that since the plaintiff experienced problemswith the trees for many years be fore notifying

Harris of that fact, she should be estopped from now a sserting

her rig hts. 2

II . Approa

ches Ta ken in Other Jurisdictions

We begin our analy sis of this case by obse rving that since Granberry was decided in 1949, states considering the question of encroaching vegetation

have taken a number of differe n t approac hes. The courts uniformly hold that a la ndowner has a remedy

of self-help, meaning that the landowner

has the right to cut encroaching branches, roots, and other growth to the prope rty line, but may not enter the adjoining pro

perty to chop down the treeor plant or cut back growth without the adjoining property owne r’s consent. See Robert Roy , Annotat io n, Encroa

chment of

Trees, Sh ru bb er y, or

Oth er Vegetation Across Bounda ry L ine , 65 A.L.R. 4 th 603 (1988 ). Thus, jurisdictions that have considered the matter, including Tenne ssee, permit the lando wner whose propert y is en cr oa ch ed by o verhanging branche s and roots to trim them to the extent of the
encroa chment. 3 Some state s apply this rule even if the encroaching

limbs and roots are not causing3 (.. .cont inu ed) Melnick v. C. S.X. Corp. , 540 A.2d 113 3, 11 35 ( M d. 19 88) ; Ho lmbe rg v. B ergin , 172 N.W .2d 739, 744 (Minn. 1969 ); Jurgens v. W iese , 38 N .W .2d 2 61, 2 63 ( Ne b. 19 49) ; W egener v. Sugarman , 1 38 A. 699, 700 ( N.J . 192 7); Loggia v. Grobe , 491 N.Y.S. 2d 973 , 974 (19 85) ; Jones v. Wagner , 624 A. 2d 166, 168 ( Pa. Supe r. Ct . 1993) ; Rosa v. Oliveira , 342 A.2d 601, 605 (R.I. 1975); Ogle v. Trotter , 495 S. W.2d 558, 565 (Tenn. Ct. App. 1973) ; Co bb v . W estern U nion T el. Co. , 98 A. 758, 759 (Vt. 1916); Gostina v. Ryland , 199 P. 298 , 301 (W ash. 1921).

4 See , e.g. , Sterling v. W einstein , 75 A.2d 144 , 148 (D.C. Cir. 1950); Richmond v. Ge n. Eng’g Enter . Co. , 454 So.2d 16, 1 7 (Fla . Ct. Ap p. 19 84) ; Schw albac h v. Fo rest La wn M em’l Park , 687 S.W .2d 5 51, 5 52 ( Ky. C t. App. 198 5); Michalson v. Nutting , 175 N.E. 490, 491 ( Mass. 1931) ; Melnic k v. C.S. X. Corp. , 540 A.2d 11 33, 1137 (Md. 19 88).

5 “The tr adi ti onal rul e of non- li abi li ty [t he Mas sac hus ett s r ul e] de vel oped a t a ti me wh en l and w as mo stl y unset tled and uncul ti vate d. The l andowne r, u nable to ke ep a dai ly accoun t of and re medy all of t

he dangerous conditions arising out of pur ely n atural causes, was therefore shi elded from liabili ty out of necess ity. W hile ther e are many reasons to continue the trad itional rule in regio ns that are largely ru ral, there is little or no r easo n to ap ply it in ur ban and other developed areas

. In urb an ce nters it would not be undu ly burd enso me fo r a sma ll prop erty ow ner to in spec t his pro perty and to tak e reasonabl e precaut ions aga inst danger ous natu ral conditi ons.” Chandler , 500 N.E.2d at 587 (citati ons omitted).
-6- any harm to the adjoining property

. See , e.g. , Jones v. Wagner , 624 A.2d 166, 168-69 (Pa. Super. Ct

. 1993). Th

ese cour ts reaso n that from “ancie nt times” it has bee

n the acc epted rule that a landowner

has the exclusive right to possess and use all of the landowner’s proper ty, including

the air space above the

ground, and therefore the redressable harm caused by encroaching trees is that of the tr espas s ont o the n eighbo ring p roperty , not physical damag e done to the neighboring land. Id. at 169.

Alth ough the jurisdictions uniformly ag ree that self-help is an

appropriate remedy , they are divided on the ava

ilability of any re medy bey ond self-help. In some states, for e xample, harm caused by encroachingbranche s and root s is not ac tionable at all, so s elf-help is the landowner’s exclusive
re me dy. 4 Courts ado

pting thi s approac

h, calle d the “Ma ssachuse tts rule,” express the concern that “to grant a landowner a ca use of action every

time tree branches, leaves, vines, shrubs, etc., e ncroach upon or fall on his property f rom his neighbor’s property , might well spawn innumerable and vexatious lawsuits .” Melnick v. C.S.X. Corp. , 540 A.2d 1133, 1137 (Md. 1988 ). The Ma ssachuse tts rule, however, has been criticized as being outdated, having evolved in an earlier time whe n land was mostly unsettled and peo ple li ved predominately in r ural settings. See Chandler v. Larson , 500 N.E.2d 584, 587 (Ill. Ct. App. 1986). 5 The Massachusetts rule has also been criticized as fostering
a “law of the jungle” mentality because self-help effectively replace s the law of orderly judicial processas the only way

to adjust the rights and responsibilities of disputing neighbors. As one court has observed, “in the long run neighborhood quarrels and petty litigation will be minimized rather than magnified by a rul e that does n ot req uire an exerc ise of self- help b efore p ermit ting an actio n to enforce legal rig

hts.” Ludwig v. Creswald, Inc. , 7 Pa. D. & C.2d 461, 464 (1956). Finally , some courts have questioned whether the M assachu se tts rule is fair given that it deprives deserving plaintiffs of any mea

ningful redress when their property is damaged. See Whitesell v. Houlton , 632 P.2d 1077, 1079 (Haw. Ct. App. 1981). A strict a pplicatio n of the Ma ssachuse tts rule to the present case, for examp le, would leave the plaintif

f with no r

emedy for the hole in

her roof or for being unable to use the only bathr oom in her house for two y ears.6 “A purchases and takes possess ion of l and on which have been pl anted a nu mber of eucal yptus trees near the

boundary lin e of B’s l and. The roots of th e eucaly ptus t rees grow into B’s land, wi th the resul t that walnut tr ees growing thereon are st

unted and ot

herwis e damaged. Alt

hough A knows of this , he doe s not cu t dow n the eu calyptu s trees. A is subject

to th e rule stat ed in § 839 [he i s subject to li abili ty f

or nuis ance], since the euca lypt us tr ees are not a natur al conditi on.” Resta teme nt (Sec ond ) of T orts § 840, cmt. a, ill us. 4 (1979).

7 See , e.g. , Ke n Co wde n Ch evro let, Inc. v. C orts , 316 N.W .2 d 259, 26 1 (Mich. Ct. App. 198 2); Griefield v. Gibral ter Fir e & Marine I ns. Co. , 24 So. 2d 356, 357- 58 (Miss . 1946)

. 8 See , e.g. , W hitesel l v. Hoult on , 632 P.2 d 10 77 ( Ha w. Ct. A pp. 1 981 ); Chandl er v. Lars on , 500 N.E. 2d 584 (Ill. Ct. App . 198 6); Toledo, S t. Louis and Kans as Ci ty R.R Co. v . Loop , 39 N.E. 306 (Ind. 1894); Pierc e v. Casady , 711 P.2d 766 (Ka n. Ct. A pp. 1 985 ); Ho lmbe rg v. B ergin , 172 N.W.2d 7 39 (Minn. 1969) ; Abbinet t v. Fox , 703 P. 2d 177 ( N. M. Ct. Ap p. 19 85) ; Tu rner v. C opp ola , 424 N.Y .S.2d 864 (N .Y. Sup. Ct. 1980); Rautsaw v. Clark , 488 N.E. 2d 243 (Oh io Ct. A pp. 1 985 ). See also Mea d v. Vincent , 187 P.2 d 99 4 (O kla. 19 47)

. -7- Otherjurisdictions have adopted what is commonly c alledthe “Rest atement r ule,” whic h imposes an obl iga tio n upon a landowner to control the landowner’s encr oaching vegetation when the vegetation is “artificial” (i.e., planted or maintained by a pe

rson), but not when the encroaching vegetation

is “n atur al.” See Restatement (Second ) of Tort s §§ 839, 840 (1979). 6 Although a few states follow the Restatement rule, 7 most have rejected it because the distinction between artificial andnatural vegetation

i s unworkable given the inherent difficulty of ascertaining the origin of a particular tree or pla nt. See Harvey

v. Hansen , 445 A.2d 1228, 1231 (Pa. Super. Ct. 1982) (distinguishing betw een artifi cial and natural vegetation is “arbitra ry at best”) . As one court has observed, “it would often be difficult to ascertain whether a tree of natural growth might not

be in part the result of human activity, suc h as cultivating, fert

ilizi ng, trimming, etc. The distinction betweenpurely natura

l conditions and conditions which i n some deg ree are the result of man’s
ac ti vi ty. . . cann ot reasonab ly be made. . . .” Sterling , 75 A.2d at 147. Finally, distinguishing betweenartificial and natural vegetation leads to the a nomaly of imposing liability upon o ne w ho improves an d m ai nt ai ns hi s p ro pe rt y, while precluding liability of an adjacent landowner who allows the natural condition of his property to “run wild.” Harvey , 445 A.2d at 1231.

Another approach is the “Virginia rule,” which provides that the injured landowner is limited to self-help unless the encroaching tree or plant is “noxious” and causes actualha rm to the neighboring property. See , e.g. , Cannon Dunn , 700 P.2d 502, 504 (Ariz. Ct. A pp. 1985) ; Smithv. Holt , 5 S.E.2d 492, 495 (Va. 1939). Confusion exists over whether a tree o r plant is noxious mere

ly because it cause s injury , or whet

her it must be inherently

injurious o

r poisonou s. Melnick , 540 A.2d at 1137. Few jurisdictions follow the Virginia rule because of the inherent “diffic ulty of determining exactly what is a noxious tree or plant.” Id.

Several jurisdictions have adopted the “Hawaii rule,” w hich holdsthat living

trees a nd plants are ordinarily

not nuisances, but

can become so when they cause actual harm or pose an imminent danger of ac tu al ha rm to ad

jo in in g p ro pe rt y. 8 Under

this approach, “when overhanging branches or protruding roots actually ca use, or there is imminent danger of them causing , [substanti al] harm to propert y other than plant life, in way s othe r t ha n b y c asting shade or dropping leaves, f lowers, or fruit, the damaged or imminently endangered neighbor

may require the owner of the

tree to pay f

or-8-

the damages and to cut back the endangering branches or roo ts, an d if such is not done within a
reasona ble ti me , t he

. . . n ei gh bo r m ay cause the cutback to be done at the tree owner’s e xpense.” Whitesell v. Houlton , 632 P.2d 1077, 1079 (Haw. Ct. App. 1981)

. However, the injured landowner “may always, at his own e

xpense, cut away only

to his property line above a nd below the surface of the ground any

part of the adjoining landowner’s tree or other plant life” that encroach upon the pr op er ty. Id. The Hawaii approach thus addresses the f lood of litigation concern expresse d by some courts over the natural processes and cy cles of trees, roots, and o ther v egetat ion, by impos ing a requirement

of actual harm or imminent danger of actual

harm to the adjoining property . Hence, the
mere fact that tree limbs or r oots extend t o another’s property does not by itself constitute an actiona ble nuisance . Moreove r, the Ha waii rule does not rely on distinctions made by the Restatement

and V ir ginia rules that have been described variously as “unwor kable,” “vague,” “difficult to apply,” and “ largely

arbitrary .” Melnick , 540 A.2d a t 1138. At th

e same tim

e, the rule provides a meaningful re medy in deser ving ca ses, i.e. , those inv olving a ctual harm or imminent danger of actual harm. The rule has been described a s “realistic and fair” because the “owner of the tree’s trunk is the owner of the tree, [and theref ore] he be ars some

responsibility for the rest of the tree . . . .” Whitesell , 632 P.2d at 1079.

Fi na ll y, at least

one court has gone so far as to per mit the adjoining landowner to compel the
owner of a t ree to remove it to the extent of the encroachment, plus recove r damages, includi n g expenses incurre d in the course of e xercising a self-h elp reme dy, in the absence of any actual harm to the property. Jones , 624 A.2d at 171. Under this view, a landowner “may ava il himself of every availab le reme dial av enue,” self-help or a suit for damag es or both, in the absence of harm or potential harm to the propert y in order to “protect the incidents of land ownership” and “ freely enjoy unencumbered

and ex clusi ve use of pro perty he ri gh t fully possesses.” Id. “Any thing le ss. . . is a travesty.” Id. As we see it, however, this approach is problematic because no a ctual harm or danger of h arm to the pro perty is required to bring suit. Permitting a cause of action every time a tree or plant so much as drops a leaf or casts shade upon another ’s landcould well subject landowners to the “annoya

nce, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely ve

xatious.” Granberry , 216 S.W.2d 723.

III. A. The Rule We Adopt

After caref ully consider ing the v arious a

pproach es of othe

r jurisdictio ns an d our own decision in Granberry , we have decided to join the growing number of states that have a dopted the Hawaii approach. We do so for several reasons. First, the Hawa ii approach strikes an appro priate balance between the competing rights of adjacent propert y owners. Asstated by

one cour t, “[t]his approach voices a rational andfair solution, permitting a landowner to grow and nur ture trees and other plants on his land, balanced against the correla tive duty of a landowne

r to ensure that

the use of his property doe s not materially harm his neig hbor.” Abbinett , 703 P.2d at 181. We agree that since the “owner of the tree’s trunk is the owner

of the tree, he [should] bear some responsibility for9 It is important to note, however, that dead or decaying tr ees that cause harm are in a category of their own and require a different

analysi s. Unlike t

he cases in volv ing harm c ause d by l ive tre es, whi ch ar e base d on nui sanc e or trespass prin cipl es, case s i nvol vin g dead or decay ing tre es ar e ty pical ly anal yzed a ccordi ng to negligence co ncepts. Thu s, liabili ty us uall y tur ns on whet

her th e defendant

landowner l ived i n an urban or rural area, a nd whether the defendant knew or sh ould have kn own that the tree was dead or decaying and theref ore was on notice that the tree might fall. See , e.g , Staples v . D uell , 494 S.E.2 d 63 9 (S.C . Ct. Ap p. 19 97) ; Taylor v. Higley , No. 02A01- 9207-CV-00194, 1993 W L 1375 93 (Tenn. Ct. Ap p. M ay 3, 1 993 ); see also Resta teme nt (Sec ond ) of T orts §36 3(2) (1 965 ); Dan B . Dob bs, The Law o f To rts 588-89 ( 2000) . The tre es invol ved in t he present

case are liv e, healt

hy tr ees. Thus, we do not reac h

(con tinued ...)
-9- the rest of the tree.” Whitesell , 632 P.2d at 1079. Seco nd, we a re pers uaded tha t the Haw aii approach is stringent eno ugh to dis courag e trivial suits, but n ot so restr

ictive tha t it precl udes a recovery where one is warranted. Alth ough some courts express the concern of spawning numer ous lawsuits, we note that states which do not limit a plaintiff’s remedy to self-he lp have apparently

not suffered any such flood

of litigation. Imposing a require ment of actual harm or imminent danger of actual harm to the adjoining property is a sufficient and appropriate gate keeping mechanism. Third,
we agree with the notion that limiting a p laintiff ’s remed y to self- help encourages a “law of the jungle” mentality because self-help replaces the law of orderly judicia

l process as the exclusive way to adjust the rights and responsibilities of disputing neighbors. I t seems that more harm

than good
can come from a rule that encourag es angry neighbors to take matters into their own hands. Fourth, the Hawaii rule d oes not dep end upon difficult to apply or unwor kable distinctions, a major disad vanta ge of the Restatement and Virginia a

ppro ache s. We

do not wish to place our courts in the difficul t, and somet

imes imposs ible, position of ha ving to a scerta

in the orig

in of a particular

tree or other ve g etation. Nor should landowners who allow their property to run wild be shielded from liability while those who maintain andimprove th eir land be subject to liability. The law should not sanction such an anomaly

. Fifth, the Hawa ii approa ch is cons istent with

the princ iple of se

lf-help embraced in Granberry . The rule is also consistent with Granberry ’s recognition that a landowner may recove r the “e xpense to which he may be put now or he reafter in cutting the overhang ing branches or foliage,” assuming the enc roaching vegetation constitutes a nuisance. Granberry , 216 S.W.2d at 723. Finally, the rule we a dopttoday

is in keeping with the aim of the law to provide a remedy to those who are harmed as a result of another ’s tortious conduct. See Camper v. Minor , 915 S.W.2d 437, 441 (Tenn. 1996).

Ac co rd in gl y, we hold that encroaching trees a nd plan ts are not nui sances merely because they cast shade , drop leaves , flowers, or fruit, or just because they happen to encroach upon adjoining propert y either a bove or b elow the g

round. Ho wever, encroa

ching tr ees and p lants may be

regarded
as a nuisance when they

cause actual harm or pose an imminent danger of actual harm to adjoining pr op er ty. If so, the

owner of the tree or plant may be held responsible for harm caused by it, and may also be requi

red tocut back the encroaching branche s or roots, assuming the encroaching vegetation constitutes a nuisance. We do not, however, alter existing Tennessee law that the adjoining landowner

m ay , at h is own expense, cut away the encroaching veg etation to the property line whether or not the encroaching veg etation constitutes a nu isance or is otherwise causing harm or possible harm to the adjoining property. Thus, the law of self- help remains intact as it has since 1949 when Granberry

was decided. 99 (.. .cont inu ed) the quest ion i n th is case of wh ethe r or to wh at e xten t l iabi li ty may be impose d forharm c ause d by a de ad or decaying tree. That subject

must awai t an appropri ate cas e.
10 In cont rast

to a private nuisanc e, a publi c nui sanc e is the interf erenc e wit

h th e publ ic’ s us e and en joymen t of a pub lic plac e. M etrop olitan G ov’t of N ashville v . Cou nts , 541 S.W .2d 1 33, 1 38 ( Te nn. 19 76)

.

11 In one o f the first pub lished p rivate nu isance cases, W illiam Aldred’s Ca se , 77 Eng. Rep. 816 (1610), the plaintiff fil ed suit

because t

he defendant

“erect ed a hogsty e so near t he house of

the pl aint iff

that the ai r ther eof was

corr upted .” Id. The p laintiff claimed that he w as “d isturbe d in and h inder ed fro m enj oying” his pro perty. Id. In response, the def

endant ar gued that

the pl aint iff

“ought not t o have so del icat e a nose that he ca nnot b ear the smell of hogs .” Id. at 817. The court foun d forthe plai nti ff, con cludi ng t hat “it may be that

before time of memory [a lan downer has ha d a righ t to] who lesom e air” o n his pro perty. Id. at 82 1. The defendant was thus found liable f or depriving the plaint iff of th e “use a nd profit

of hi s house. ” Id. at 82 1-22

.

-10- B. Private Nuisance

As indicated abov e, the plai ntiff ass erts that the d efenda nt’s tree s constitut

e a priva te nuisance. Tennessee courts have defined a private nuisance as “anything which annoys or disturbs the free use of one’s property , or which renders its ordinary use or physical oc cupation
unc omf ortable . . . [and] extends to everything that endang ers life or health, gives offense to the senses, violates the laws of decency , or obstructs the reasonable and comfortable use of property.” Patev. City

of Martin , 614 S.W.2d 46, 47 (Tenn. 1981). 10 Depending on the surroundings, activities that constitute a nuisance in one context may not c onstitute a nuisance in a nother . Whether a particular activity or use of pr

operty amounts to an unre asonable invasion o f anothe r’s leg ally protect able interests depends on the circumstances of ea ch c ase, such as the character of the surroundings, the nature, utility , and social value of theuse, and the nature and extent of the harm involved. Id.

Tennessee’s definition of private nuisance is ty pical of how most states have defined the tort, bothnow and in the past. See Restatem ent (Sec ond)of T orts § 821D (1979). Indeed, a ctions based
on the unre asonable

interfe rence with another’s interest in the private use and enjoy ment of propert y date back to the twelfth century

in England. Id. at cmt. a. 11 Nuisance law has since developed over the centuries to the point where a nuisance may now consist of a

physical condition on the land itself (i.e., vibrations, pollution, or flooding), cause discomfort or inconvenience to the oc cupants of the propert y (i.e., odors, dust, smoke, noise), or consist of a condi tion on adjoining property which impairs the occupier’s tranquility (i.e., conducting an unl awful business or keeping diseased animals). W. Page Keeton, Prosser a nd Keeto n on the L

aw of Tor ts 619-20 (5 th ed. 1984). So “long
as the interference is substantial and unreasonable , such as would be offensive or incon venient to the no rm al pe rs on , v ir tu al ly a ny d is turbance of the enjoy ment of the property

may amount to a nuisance.” Id. at 620. Th us, nuisance does not descr ibe a def endant’ s conduc t, buta type of ha rm suffered by

the plaintiff. See Zollinger v. Carter , 837 S.W.2d 613, 615 (Tenn. Ct. App. 1992).

A party who has been s ubjected to a private nuisance may be entitled to several ty

pes of remedie s. S ince at least the mid-1800s, courts in Tennessee have had the authority to order the-11-

nuisance abated. Tenn. Code Ann. § 29-3-114. Thus, a plaintiff may be entitled to injunctive relief , especia lly where the nuisance is likely to continue. Pate , 614 S .W. 2d at 48. Further, in cases involving a temporary

private nuisance, which

is one that can be corrected, damag es may be a warded for the cost of restoring the property to its pre-nuisance condition, as well as damages for inconvenience, emoti onal distress, and injury to the use and e njoyment of the proper

ty. Pryor v. Willoughby , 36 S.W.3d 829, 831 (Tenn. Ct. App. 2000). The typical wa y of measuring

injury to the
use and enjoy

ment of the

propert y isthe decr

ease in rental value of theproperty while the nuisance existed. Id. ; see also Pate , 614 S.W.2d at 48 (noting that the measure of damagesis the “inj ury to the value of the use and enjoy ment of the pr operty , which isusually shown by evidence of the extent that the rental value of the property is diminished by the nuisance”). A ccordi ngly , courts provide an appropriate remedy

in the form of either damages or injunctive re lief or both.

C. Applica

tion to this Ca se Applying the principles we haveadopted t o the pre sent cas e, it is clear that the defendant’s trees satisfy Tennessee’s definition of a private nuisance, i.e., “any thing which a nnoys or disturbs the free use of one’s property , or which renders its ordinary use or physical oc cupation uncomfortable. . . [and] extends to everything that endang ers life or health, gives of fen se to the senses, violates the laws of decency , or obstructs the reasona ble and comfortable use of property .” Pate , 614 S.W.2d at 47. The record reveals that the def endant’s trees caused a hole in the plaintiff’s roof. Water fro m that hole ruined the plaintif

f’s ceil ings and the stove in her kitc

hen. Also , it i s uncontroverted

that the plaintiff has severe plumbing problemsas a res ult of enc roaching roots. The plaintiff has not been able t

o use her bathroom

sink or tub

in two y ears. N or can sh

e flush he r toilet. She must go to

a neigh bor’s hou se to use the restroom. Raw sewage bubbles up into her ba thtub. Her bathroom floor has been replaced bec ause her toilet continually ba cks up, s pilling w ater ont o her floor. Neighbors have complained to her a bout the foul smell of sewage coming fr om her pr op er ty. When aske d about the condition

of her ho me, the pl ain tiff replied , “ever yth ing is all messedup. I

can’t ba the. I can’t c ook. I

don’t wa nt people coming t o my house be cause it

has odors in it, fleas, fl ie s, bugs. It ha s just bee n awful f or me.” T

hese cir cumstanc es have u

ndersta ndably taken a toll on the

plaintiff . Sh e is underthe care of a psy chiatrist and takes medication for emotional pr oblems. She testif ied that sh

e may have to mo ve out of h

er house because she “just can’t take too much more.” Clearly , the defendant’s encroaching trees have adversely

affected the plaintiff’s reasonable and ordinary use and occupationof her home, not to mention posing hazards to the plaintiff’s health and safety. Ac cordingly , we reject the defendant’s assertion that its trees do not constitute a nuisance.

Conclusion

After carefully considering therecord

and relevant authorities, we conclude that the lower courts erred in finding

that the p laintiff

’s sole re medy was self -help. En croach ing tre es and pla

nts
are not nuisances mer

ely because they cast sha de, drop leaves, flowers , or fruit, or just because they happen to encroach upon adjoining property either above or

b elow the ground. However,12 The tri al court made no fin dings r egarding damages or whet her abate ment of t

he nuis ance would b e app rop riate.
-12- encroachingtrees and

plants may be re garded as a nuisance whe n they cause actual harm or pose an imminentdanger of actual harm to adjoining property. I

f so, the owner of the tree or plant may be held responsible for harm caused by it, and may also be required tocut b ack the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. We do not, however, alter existing Tennessee law that the adjoining landowne r ma y, at his own expense, cut awa y the encroachingvegetation to the property line whether or not the encroaching vegetationconstitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property . We further find that the rec ord in this c ase is sufficie nt to establish liability for nuisance. Ac cordingly , the judgment of the Court o f Appea

ls affir ming the trial cou rt’s dismis sa l of the c ase is re versed. The cas e is remanded to the trial court for a determination of d amages and other appropriate relief, such as ordering the nuisance abated (i.e., order the tree s removed). 12 Costs of this appeal are taxed to the defendant, W.J. Curry & Sons, for whic h execution may issue if nece ssary.

_____________________________________ FRANK F . DROWOTA, II I, CHIEF JUSTICE