It is definitely regular to hear about tree trimming cases where a landowner wants to cut the branches of a the next door neighbors tree that overhang the common boundary line-which is actually authorized, to a point-or actually those cases when an individual trespasses to the property of another in order to cut or perhaps decrease trees and shrubs completely situated upon that lot-which is actually illegitimate. Regardless of the underlying reason regarding these kinds of cutting down on as well as chopping, Massachusetts legislation is reasonably distinct about whether responsibility as well as damages may take place within those scenarios informs Jeffery T. Angley.
But have you considered any time a tree equally straddles two lots? Not just the branches, but the principal trunk by itself? Who is the owner of the actual sapling, as well as, most importantly, can all or a portion of it be legally taken off? These criteria grow to be critical each time a landowner wishes to make improvements on or within the boundary line which require removal of the tree.
Interestingly enough, Massachusetts case law is essentially unclear about just what rights are available whenever a tree trunk grows across a boundary line. In one case, Levine v. Black, 312 Mass. 242 (1942), the court had the capacity to address the problem, however eventually punted. At best, the Levine court noted that amongst other areas the particular tree was regarded as being owned as tenants in common relating to the two nearby components, or even that every landowner owned the actual portion of the tree on his respected lot, but didn't specifically determine which legal rights apply in Massachusetts.
Quoting Levine, a reasonably current tree chopping decision (under Rule 1:28) issued by the Appeals Court ordered that complete value damages be paid for cutting a tree that straddled the boundary line. The decision failed to state the type of property rights that supports the actual awarded damages, and just vaguely referred towards the existence of legal rights inside the tree that protect against another's unilateral actions which causes harm to or even destroys the actual tree. See Lasell College v. Fox, 53 Mass. App. Ct. 1103 (Nov. 2, 2001) ("Each of the parties held a legal interest in that part of the tree on his own property but also had the right to prevent the other party from dealing with part of the tree so as to injure or destroy the whole tree.").
Within some other areas, the courts have more or less supported the concept a tree increasing on two lots is actually held as renters in common or collectively, and that this kind of trees and shrubs can not be destroyed with out permission, nor may they be clipped to be able to cause material damage. See, e.g., Garcia v. Sanchez, 108 N.M. 388 (1989) (citing Annotation, Rights and Liabilities of Adjoining Landowners As to Trees, Shrubbery, or Similar Plants Growing on Boundary Line, 26 A.L.R.3d 1372, 1374-1375 (1969)); Young v. Ledford, 37 So.3d 832 (Ala.Civ.App. 2009), writ of mandamus denied Young v. Ledford, 79 So.3d 656 (Ala. Civ. App., 2011), (reversing lower court order that authorized removal of entire boundary line tree because, under Alabama law, "[i]n the special case of a boundary-line tree, ... each adjacent landowner has ownership rights that can't be trumped by the other's desires in the manner suggested by the trial court's judgment") informs an insider from Jeffery T. Angley.
So what's a landowner to try and do? At minimum, every time a tree can be found to be developing about two lots, the sensible landowner ought to seek out the consent of his neighbor when it is required to eliminate or substantially reduce the tree. According to the situations prompting the particular tree removal, agreement might be given if the neighbor is reasonable. However, in those situations where the neighbor is unwilling to get the tree cut down, feasible choices include revising plans so that it does not require any kind of tree removing or substantial trimming to the point of harm or even bringing a declaratory judgment action in court to have the court determine the parties' respective rights.
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Depending on Phillips & Angley, in advance of beginning any excavation task like tunneling as well as blasting, developers and landowners need to know the often-overlooked responsibility they will owe to neighboring properties in order to avoid nuisance or negligence responsibility.
A landowner owes an obligation of lateral-subjacent help to adjoining properties. Therefore, all property owners are entitled to expect that naturally occurring soil and water situations, including the lateral service offered by adjoining properties, will remain in their natural status. It is really an natural property right.
However, what happens when a parcel of land needs to be excavated for development? Are there consequences for or considerations to be made by the developer or landowner? Jeffrey T Angley says, of course, is yes. The reason for this is that it is well settled that for an excavation causing an injury to the soil of an adjoining owner in its natural state an action will lie, but that no recovery will be allowed in the absence of negligence or a direct trespass for an injury to structures by excavating the adjoining land.
There will be strict accountability for landowners (or their contractors) that digs blast or tunnel on their land if they take away or injure the lateral help benefitting adjacent property and damage the land in its natural status.
When it comes to removal of bedrock for development, certain methods of excavation and blasting are more destructive than others. This depends on the nature of the project site in relation to its surroundings. For example, shock waves, vibrations, and cracks and fissures in the bedrock extending beyond the property line-are just some of the potential consequences of blasting. This can create an unsafe and hazardous situation for adjoining properties, and potentially subject the developer and/or landowner to claims of nuisance and negligence from adjoining property owners.
For that reason, while excavation as well as related growth is definitely not restricted, this will require several forethought, especially due to the fact interference with lateral support or conduct regarded a trespass or negligent can translate into money damages owed to affected properties.
Developers, contractors and adjoining landowners can take some precautions as mentioned below:
Evaluate and understand the recommended excavation plans just before permits are issued, if possible, but certainly, ahead of excavation will start. This overview will need the expertise and input of experienced geotechnical experts and engineers. They shall be looking to assess if the plans will cause harm to surrounding properties.
For projects requiring blasting, consider alternative methods of excavation and mitigation in light of the proximity of surrounding properties, buildings and uses. There are often less intrusive methods of excavation available to developers that could help avoid the potential for negligence.
Understand that some neighboring property, structures and uses-such as towers and antennas anchored with person wires deep into the bedrock-may not have typical blasting criteria that will permit for a reliable blasting plan. This is where developers need to be particularly sensitive to alternative methods of excavation.
Developers and contractors must remember that it is no defence to a valid nuisance claim that their conduct was under the guise of a duly issued permit. Their conduct, notwithstanding the town or city's approval, can still result in a lawsuit if it substantially and unreasonably interferes with another landowner's use and enjoyment of his land.
In general, it is extremely important that any specific excavation or blasting venture prevent disrupting or destroying the lateral support presented to neighboring properties.
Disclaimer: The information contained in this article is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel.
The author writes helpful content articles about the several legal issues, Jeffrey T Angley P. C and has an experience of working with several law firms such as Jeffrey T Angley P. C. The author takes in inspiration from the legal works of Phillips & Angley to find out more about the same see - http://www.manta.com/c/mm3vzhb/phillips-angley. For Article Resource head to - http://www.jeffreytangleypc.com/blog/2012/08/excavation-blasting-activities-the-duty-of-lateral-support.shtml
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