On appeal from the Superior Court, Law Division, Burlington County.
Furman, Cohen and Ashbey. The opinion of the court was delivered by Furman, P.J.A.D.
Liability for tree root damage to a neighbor's property is at issue on this appeal. The trial court awarded $2,960 to defendants on their counterclaim for damages and for abatement of a nuisance: tree roots which had spread onto their property from a maple tree growing on plaintiffs' property, cracking their waylite block boundary fence. Plaintiffs had planted the maple tree about three and a half feet from the common boundary 14 years before, three years before the construction of defendants' boundary fence.
The focus of the brief non-jury trial was on plaintiffs' action for abatement of defendants' boundary fence as a nuisance and for consequential damages for diminishment of their own property's value. The trial court dismissed plaintiffs' action because their only proof was that the boundary fence was unsightly and aesthetically displeasing to them, insufficient as a matter of law to support a finding of a nuisance, Cahill v. Heckel, 87 N.J. Super. 201, 204 (Ch.Div.1965). No issue challenging dismissal of plaintiffs' complaint is raised before us. Plaintiffs' sole issue on appeal is that no liability should lie on the counterclaim against them for unforeseen damage to their neighbors' wall arising out of root growth from a previously planted tree.
Only two witnesses testified at trial: Henry D'Andrea, one of the two plaintiffs, and Patricia Guglietta, one of the two defendants. D'Andrea's testimony was directed solely to his claim, not to the counterclaim. According to Guglietta's testimony, the maple tree was planted around 1970 "about the same time" that she and her husband installed a chain link boundary fence; the Gugliettas removed the chain link fence around 1973 and replaced it with their waylite block fence; the maple tree's roots were not "established anywhere near that wall" when the Gugliettas dug down to put in foundation footings for their masonry wall; approximately eleven years later when they noticed the crack in the wall, they dug down and discovered
"gigantic" roots from the nearby maple tree up to 30 feet in length "coming through the wall." A masonry contractor's estimate of $2,960 for repair of the wall, to which Guglietta testified, was unchallenged at trial and is unchallenged before us as to reasonableness.
Plaintiffs neither pleaded nor offered proof of any defense, e.g., that defendants could have avoided the injury to their masonry wall by self-help in 1973 or thereafter, that is, by digging down, severing and removing the maple tree roots on their side of the common boundary. The judgment for defendants on their counterclaim awarded damages but no specific relief. Under common law principles, defendants were entitled to cut off invading tree roots by exercising self-help, 2 Thompson, Real Property (5 ed. 1980), § 336 at 155; Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931); Colombe v. City of Niagara Falls, 162 Misc. 594, 295 N.Y.S. 84 (Sup.Ct.1937).
The trial court relied upon two New Jersey cases, Ackerman v. Ellis, 81 N.J.L. 1 (Sup.Ct.1911) and Wegener v. Sugarman, 104 N.J.L. 26 (Sup.Ct.1927), which deal with liability arising from and remedies available for overhanging tree branches. Ackerman holds that overhanging tree branches may constitute a nuisance for which an action for damages lies. Wegener recognizes the common law right of self-help to lop off overhanging branches to the property line but no further.
According to the trial court "as a matter of logic, . . . no distinction can be made between roots and branches." That approach overlooks real distinctions between the two. Unlike tree branches, tree roots are largely underground and evident only upon digging down; their extent and girth may be uncertain and unpredictable; they are not commonly pruned or otherwise tended; their severance may endanger the tree's stability in high winds and rainstorms.*fn1 A tree root system may extend vertically downward or may spread laterally close
to the surface. The relatively uncomplicated law governing invasion of adjoining property by tree branches may not be fairly applicable under all circumstances to tree roots.
The trial court also relied upon two out-of-state cases, Buckingham v. Elliott, 62 Miss. 296 (Sup.Ct.1884), and Holmberg v. Bergin, 285 Minn. 250, 172 N.W. 2d 739 (Minn.Sup.Ct.1969). Buckingham affirms an award of damages for injury to a well by tree roots from a mulberry tree, which the court refers to as a "noxious" tree, growing on the adjoining property. Holmberg affirms a judgment ordering destruction of a tree, the roots of which caused injury to a neighbor's fence, sidewalk and basement, and affirms on cross-appeal the ...