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PAINE ON PROCEDURE: Shalt Thou Love Thy Neighbor’s Trees?
What procedural remedies are available to a plaintiff homeowner if a defendant neighbor owns trees with encroaching limbs and roots? That question arose in Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn. 2002).
Gloria Beatrice Lane lived from birth in a modest house at 2144 Goff Avenue in Memphis. A larger house next door had three healthy oak trees beside the boundary line. But overhanging limbs occasionally broke off. And protruding roots crept beneath the Lane abode. I have the full transcript, but Justice Drowota’s opinion contains the following summary of evidence.
In 1997, a large limb from one of the defendant’s trees located between the parties’ houses broke off and fell through the plaintiff’s roof, attic, and kitchen ceiling, causing rainwater to leak into the interior of her home. The water ruined the plaintiff’s ceilings, floor, and the stove in her kitchen. The plaintiff is not physically able to cut 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.
In addition to the harm caused by the overhanging branches, roots from the defendant’s trees have infiltrated and clogged the plaintiff’s sewer line, causing severe plumbing problems. The plaintiff has tried to chop the encroaching roots over the years, but they keep growing back and causing more plumbing problems. The plaintiff has not been able to use her toilet, bathtub, or sink in two years because of the clogged sewer pipes. She must go to a neighbor’s house to use the restroom.
When the case was tried without jury in Shelby Circuit on May 9 and 10, 2000, the only remedy available was self-help. Granberry v. Jones, 216 S.W.2d 721 (Tenn. 1949). Consequently the trial judge and the Court of Appeals held for the defendant.
The Supreme Court changed the law. The oak trees were held to create a private nuisance. A plaintiff now has three remedies:
- Damages for restoring property, inconvenience, emotional distress, and injury to the use and enjoyment of the property.
The court reversed and remanded. I’m advised that the case was not retried.
DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP.