HEIDI I. BASSIN vs. MARY FAIRLEY and IDA FRIDMANN.

Heidi Bassin (“Plaintiff”) filed her Verified Complaint on August 5, 2011, pursuant to G. L. c. 231A and c. 185, § 1, 1) seeking a declaratory judgment a) as to the boundary line between Plaintiff Property, as hereinafter defined, and the properties of Mary Fairley (“Fairley”) and Ida Fridmann (“Fridmann”)(together, “Defendants”), b) that Defendants do not own any portion of Plaintiff Property by adverse possession, and c) that Plaintiff has the right to remove trees, install a fence, and landscape Plaintiff Property, 2) alleging trespass by Defendants, and 3) seeking injunctive relief to enjoin and restrain Defendants from using Plaintiff Property or interfering with Plaintiff’s efforts to remove trees located on Plaintiff Property, install a stockade fence, or landscape or level Plaintiff Property. On September 19, 2011, Fairley and Fridmann each filed an Answer and Counterclaim. Fridmann alleged a dispute over the boundary line, adverse possession, and damages resulting from the loss of lateral support of a retaining wall removed by Plaintiff. Fairley alleged adverse possession, a dispute over the boundary line and sought a prohibition against Plaintiff cutting trees on or near the boundary line. Plaintiff filed her Answers to both Counterclaims on October 3, 2011. A case management conference was held on October 6, 2011. A Joint Stipulation of Dismissal of all Claims and Counterclaims between Plaintiff and Fridmann was filed on July 16, 2013.

On August 2, 2013, Plaintiff and Fairley filed a pre-trial memorandum and Partial Stipulation of Dismissal of Fairley’s counterclaims: Fairley dismissed her counterclaims of adverse possession and of a boundary dispute; [Note 1] Fairley dismissed the portion of her counterclaim relative to the removal of Trees A, C, D, E, F, and G, leaving only the disputes over the removal of Tree B and Plaintiff’s entry onto the Fairley Property to remove trees. [Note 2] Plaintiff and Fairley attended a pre-trial conference on September 25, 2013. Plaintiff filed a Statement of Material Facts on October 16, 2013, together with Affidavits of Massachusetts Certified Arborist (Stevan Gold) and Heidi Bassin. On November 4, 2013, Fairley filed her Response to Statement of Material Facts. At a status conference held on November 12, 2013, this court determined that there were no material facts at issue, and that the case could proceed by summary judgment.

Plaintiff filed her Motion for Summary Judgment on February 13, 2014, together with supporting memorandum, Statement of Material Facts, and Affidavits of Stevan Gold (“Gold Affidavit”) and Heidi Bassin (“Bassin Affidavit”). On March 13, 2014, Fairley filed her Cross- Motion for Summary Judgment, together with supporting memorandum, Statement of Additional Undisputed Material Facts, Affidavit of Massachusetts Certified Arborist, William Joseph (“Joseph Affidavit”), and Motion to Strike portions of the Affidavit of Heidi Bassin. Plaintiff filed her Opposition to Cross-Motion and Opposition to Motion to Strike on March 28, 2014. A hearing was held on all motions on April 7, 2014, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following material facts are not in dispute:

1. Plaintiff owns property located at 40 Clark Street, Newton, MA (“Plaintiff Property”), shown on “Plan of Land in Newton, MA, 40 Clark Street Fence Location” dated April 21, 2011, and prepared by Everett M. Brooks Co., Surveyors & Engineers (the “April 2011 Plan”).

2. Fairley owns property located at 80 Rowena Road, Newton, MA (“Fairley Property”).

3. The rear of the Fairley Property abuts the side yard of Plaintiff Property.

4. A row of trees marked as Trees A, B, C, D, E, F, and G located on or near the boundary line between Plaintiff Property and the Fairley Property are shown on plan titled “Plan of Land” dated October 27, 2011, and prepared by Verne T. Porter (the “October 2011 Plan”).

5. Tree B is located on the boundary line between Plaintiff Property and the Fairley Property. Tree B is approximately 32" in diameter, over sixty feet tall, and at least fifty years old. Tree B is growing on top of pudding stone ledge. The roots of Tree B are under both Plaintiff Property and the Fairley Property.

6. Plaintiff intends to remove Trees A, B, C, D, E, F, and G as part of the development of Plaintiff Property.

7. In order to remove Trees A, B, C, D, E, F, and G, Plaintiff’s tree removers will need access to the Fairley Property.

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Motion to Strike

On March 13, 2014, Fairley filed a Motion to Strike portions of Bassin Affidavit. Specifically, Fairley moved to strike ¶¶ 14-19, 22, 25-28, 33-35, 37, and 39-41. Fairley bases her Motion to Strike on the following grounds: expert testimony offered by a lay person, lack of personal knowledge or proper foundation, and hearsay.

Most of Plaintiff’s statements that Fairley requests to strike are statements that would require expert testimony, and in fact many are exact statements made by Plaintiff’s own experts; thus ¶¶ 14, 17, 19, 22, 25-28, 33-35, and 39 are stricken from Plaintiff’s affidavit. Plaintiff’s statement regarding the age of the tree, ¶ 16, is hearsay as she could only have acquired this information from her parents or others, not from her own personal knowledge. This is also true for Plaintiff’s statements regarding the procedures for removing the trees from her yard in ¶¶ 39-41. This information is hearsay if it came from the tree removal company Plaintiff consulted with regarding trees. If this information came from Plaintiff’s own personal knowledge, it would still be stricken for Plaintiff is not an expert on the procedures required for the safe removal of trees. However, ¶¶ 15 and 18, regarding the approximate height of the tree and the proximity of the tree to the fence could be made by Plaintiff from her own personal knowledge without any expertise, and therefore are not stricken.

As a result, I find that Fairley’s Motion to Strike is ALLOWED IN PART, as follows: ¶¶ 14, 16, 17, 19, 22, 25-28, 33-35, 37, and 39-41 are stricken; and ¶¶ 15 and18 are not stricken.

Motion for Summary Judgment

Plaintiff argues that she should be able to cut down Tree B because it is partly located on Plaintiff Property. Plaintiff asks that this court declare that she be able to cut down Tree B, and in addition, that she be able to enter the Fairley Property to safely remove Trees A, B, C, D, E, F, and G. Fairley argues that because Tree B is located on both Plaintiff Property and the Fairley Property, neither party can cut down the tree without the consent of the other. Fairley also argues that Plaintiff would not be able to enter the Fairley Property to cut down any of the trees without Fairley’s consent.

I. The Right to a Tree that Straddles a Boundary Line

The law is clear in Massachusetts that when a tree trunk stands wholly on one party’s land, that party is considered to be the sole owner of that tree. Levine v. Black, 312 Mass. 242 , 243 (1942). Should the roots or branches invade or overhang the land of another, that party has a definite right of self-help to trim the roots and branches to the extent they are on his property. Id.; Michalson v. Nutting, 275 Mass. 232 , 234 (1931). Rights as to the tree differ, however, when the tree trunk stands on the boundary line of two pieces of property.

Plaintiff interprets Levine as creating a balancing test for situations in which a tree straddles a boundary line and one owner wishes to remove the tree while the other does not. Fairley argues that Levine does not create any such balancing test, and instead relies upon College v. Fox, 53 Mass. App. Ct. 1103 (2001), which states that each party has a legal interest in the portion of the tree located on their property, as well as a right to prevent the other party from doing anything to their portion of the tree that would cause injury or destroy the tree as a whole. [Note 3]

The Levine court recognized the issue of determining rights for a tree that straddles two properties, but noted that they need not decide the issue in that case, or even determine if a balancing test would be appropriate, because the tree in question had already been so badly damaged that providing the plaintiff with relief he was seeking (an injunction to prevent further damage to the tree) would be a “futile gesture.” Levine, 312 Mass. at 244. But even if Plaintiff’s suggested balancing test did exist, from the statements made by her own arborist in the Gold Affidavit, there is no clear detriment that would outweigh the benefit of Tree B remaining and warrant its removal. While the Gold Affidavit contains clear and unequivocal reasons as to why Trees A, C, D, E, F, and G should be removed, the same is not said for Tree B. In regards to Tree B, the Gold Affidavit only states that the roots may run under Plaintiff’s porch and that there are concerns that Tree B will become less stable after the removal of Trees A, C, D, E, F, and G. Overhanging branches and invading roots are damnum absque injuria (“loss without injury”); they do not create a violation of an adjoining party’s rights. Michalson, 275 Mass. at 233. The Gold Affidavit does note that Tree B is growing on top of pudding stone ledge, making the roots more susceptible to uprooting, which could potentially cause a tree to fall over. However, the Gold Affidavit does not state that Tree B has shown any signs of uprooting, the likelihood of it occurring to this particular tree, or most importantly, does not label Tree B to be a hazard.

The Levine court noted, with some confusion, in its brief review of the state of the law that property owners are generally treated as tenants in common of such a tree or as separate owners, each holding title to a portion of the tree and able to do as they wished with their portion of the tree, as long as it was not to the detriment to the tree as a whole. Levine, 312 Mass. at 243. “[I]t is difficult to see why either owner should have any less right to cut off branches and roots than he would have if the trunk stood entirely upon the other’s land.” Id. at 244.

In fact, it can be easily understood why a party would have more power to cut intruding branches and roots when the tree trunk is standing completely on a neighboring property. In that situation, the party is allowed the broad powers of self-help because the pruning of just the portion of the tree that has entered their property, the roots and branches, will not deprive his neighbor of his right to keep the tree on his property. “[A]n owner of land is at liberty to use his land, and all of it, to grow trees. Their growth naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others.” Michalson, 275 Mass. at 233. In the instant case, however, there can be no such compromise: the tree will either remain or it will be cut down. Plaintiff is seeking to remove more than just the roots and branches; she wishes to remove the trunk of the tree. The more drastic consequences of removing essential parts of the tree make it clear why it is necessary that the self-help rights given to parties in this situation be more restrictive. Otherwise, the party wishing to remove the tree would essentially have absolute power over the tree, by being able to cut the tree to the point of death, leaving the party wishing to keep the tree helpless.

Moreover, even if Plaintiff were allowed to do what she wished with her half of Tree B, regardless of the impact on the tree as a whole, this would not give her the right to take down Fairley’s half of the tree, even under the broader powers of self-help. There is nothing to suggest that in a situation where a party cannot utilize the self-help options available to meet their desires, that they should be granted even greater power over the fate of a tree. Michalson, 275 Mass. at 234 (The plaintiff’s relief is limited to self-help: plaintiff cannot get an injunction requiring defendant to prevent tree from extending into neighboring property.). If this were so, the courts would be flooded with parties claiming that their self-help options were insufficient to protect their interests, asking that they, too, be allowed to remove entire trees.

As a result, I find that Plaintiff and Fairley each hold title to a portion of Tree B, and thus neither can take any action against their portion of Tree B that would injure Tree B as a whole.

A. Nuisance

The only way in which Plaintiff may be able to remove Tree B in its entirety is if the tree constituted a nuisance. While most trees are not inherently nuisances, they can be a nuisance, entirely or in part. Kurtigan v. Worcester, 348 Mass. 284 , 288 (1965) (“[T]rees can be a nuisance as much as can a dilapidated building or other structure.”); Jones v. Great Barrington, 273 Mass. 483 , 487 (1930) (A “tree may become a nuisance by disease or decay.”).

Plaintiff tries to further her argument that Tree B is dangerous, and therefore a nuisance, by claiming that the tree roots from Trees A, B, C, D, E, F, and G have caused Plaintiff’s door frame to fall out of alignment. Even if Tree B’s roots could be singled out as the cause of this damage, as opposed to the roots of Trees A, C, D, E, F, or G, the case law suggests that damage of this magnitude is not sufficient to classify a tree as a nuisance. Michalson, 275 Mass. at 233 (Roots that had grown under plaintiff’s cement cellar, cracking the cement and threatening serious injury to the foundation were not considered to be a nuisance.). Plaintiff also attempts to argue that Tree B is a hazard because branches have fallen onto her porch, causing damage in the past. However, as a matter of law, falling branches from a healthy tree do not constitute a nuisance. In Ponte, a healthy tree was not considered to be a nuisance despite the fact that debris frequently falling from the tree had caused injuries before. Ponte v. DaSilva, 388 Mass. 1008 , 1008 (1983).

The Gold Affidavit and Joseph Affidavit each provide an analysis of the health and safety of Tree B. The Joseph Affidavit found Tree B to be healthy with no signs of decay, decline, or reasons to fail in the future. The Gold Affidavit, although it did not state that Tree B was safe and healthy, did not classify Tree B as a hazard or dangerous.

As a result, I find that Tree B does not constitute a nuisance.

B. Liability

Plaintiff argues that she should be allowed to remove Tree B, because otherwise she is unfairly exposed to liability for any injuries or damage Tree B may cause to persons or things. Fairley correctly points out that in its current state, Plaintiff would not be liable for any damages caused by Tree B. “The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor’s property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance.” Ponte, 388 Mass. at 1008. Therefore, as long as Tree B remains healthy, Plaintiff need not worry about liability for Tree B. Contra Kurtigan, 348 Mass. at 290 (Tree was a foreseeable nuisance because it had become diseased and died three years earlier, making City liable for damages caused by tree.).

Although Plaintiff cannot cut down Tree B, she is not left without any remedy. The Joseph Affidavit explains that Plaintiff may still prune the roots and branches of Tree B that are on, or overhang her property, to the extent allowed by ANSI A300 Standards. [Note 4]

As a result, I find that Plaintiff is not unfairly burdened with liability for Tree B.

II. Plaintiff’s Ability to Enter the Fairley Property for the Safe Removal of Trees

Plaintiff argues that the Restatement (Second) of Torts § 197 allows her the privilege to enter the Fairley Property for the removal of Trees A, B, C, D, E, F, and G for private necessity. [Note 5] However, the Restatement (Second) of Torts § 197, comment a, clearly states that this privilege can only be triggered by an emergency situation. [Note 6] Based on the Summary Judgement record, there is no emergency situation that would create a privilege for Plaintiff’s entry onto the Fairley Property for the removal of Trees A, C, D, E, F, or G. However, when Fairley agreed to the removal of Trees A, C, D, E, F, and G, Fairley provided Plaintiff with an implied license to remove those trees, and subsequently to perform any acts necessary for that purpose. See Giles v. Simonds, 81 Mass. 441 , 442 (1860) (When vendor sold vendee personal property located on vendor’s land, vendee obtained an implied license to enter the land to take possession of his property.). [Note 7]

As a result, I find that Plaintiff, and the tree removal employees working on her behalf, may enter the Fairley Property to the extent necessary for the safe removal of Trees A, C, D, E, F, and G. Plaintiff will be responsible for any damage caused to the Fairley Property. [Note 8]

Remedy

As a result of the foregoing, I ALLOW IN PART AND DENY IN PART Plaintiff’s Motion for Summary Judgment and ALLOW IN PART AND DENY IN PART Fairley’s Cross- Motion for Summary Judgment, as this court finds that Plaintiff will not be permitted to cut down Tree B, but Plaintiff may enter the Fairley Property as reasonably necessary for the purpose of safely removing Trees A, C, D, E, F, and G.

Judgment to enter accordingly.