On the lot next door to us, they dug a hole for the foundation and basement of a new home. The hole went right up to our property line. Inside our property line by about a foot was an 80 year old maple, approximately 3 feet in diameter. When they dug the hole next door they destoryed over 40% of the roots of this tree. We had to cut it down 6 days later, since it was declared a hazard by the city. We received no notice prior to them digging the basement.

What recourse do we have?

Reply to post by Joseph Conigliaro, on June 28, 2000 at 12:49:35:

Unfortunately, your recourse is with the court system, which can be quite expensive. You need an attorney who is familiar with tree law and a plant appraiser to determine the value of the tree. Good luck!
lew

Reply to post by lewbloch, on June 28, 2000 at 12:49:35:

Lew, is it not true that in the US the law allows this? Aside from the Patel case in California, there have been no others specifically dealing with activity on one site that does not trespass, yet results in off site tree removals. This is based on longstanding English common law.

Reply to post by Julian, on June 28, 2000 at 18:17:44:

Julian,
It is my understanding that Patel changed the entire understanding of the "Massachuseets Rule" of self help. Of course I am a mere lay person speaking>
lew

Reply to post by lewbloch, on June 28, 2000 at 21:58:48:

If I recall Victor Merullo's talk at the PennDel meeting in February (you were there Lew) some state adhere to the Massachussets rule, Patel notwithstanding, and some follow another rule that is more amenable to Patel and allows that "sel help" must be tempered by reasonable care for the property of others. The fact that the entire trunk was entirely on one property may influence the interpretation in favor of the other property that cut the roots.

Reply to post by Scott, on June 29, 2000 at 17:59:35:

Hi Scott,
Self help tempered with reasonable care is exactly what Patel was all about. Before Patel, reasonable care was not considered. Of course your comment about the tree being on the other side of the property line is important because that would rule out both of the above theories as it would be a jointly owned tree and neither party could do anything without the others approval.
lew

Reply to post by lewbloch, on July 03, 2000 at 18:56:47:

What I can't recall from Merullo's lecture is the other rule - opposite the Massuchussets self help rule - that would tend to follow or at least recognize Patel. Or is there the MA rule and no rule?

Reply to post by Scott, on July 05, 2000 at 17:53:57:

I believe it's MR or No-MR. Or is it to-be or not-to-be?
lew

Reply to post by lewbloch, on July 05, 2000 at 20:06:52:

MR or no MR, that is the question
weather to suffert the saws and pruners
of selfish neibors

oh well I'm lousey with iambic pentameter

Reply to post by Joseph Conigliaro, on June 28, 2000 at 12:49:35:


Am I missing a point here? All the other posts in the threads notwithstanding, why was the tree cut down on orders of the city? And 6 days after the excavation?

Was it somehow an immediate hazard? And if it was, wasn't that a consequence of the actions of the neighbor's contractors? In my part of the world, I am responsible for damages I or my agents inflict on others.

The city's role here is curious. Isn't their demand for removal, a certification of the neighbor's creation of a hazard? Was the city's reason a potential collapse of the sidewall of the excavation. Again in my world, when digging a big hole, I am required to shore up the adjacent soils against that sort of possibility. We also have setback requirements to prevent these kinds of issues.

Did the neighbor's get issued some sort of ticket or citation prior to the order for removal? Seems to me the linkages of cause and liability are quite clear--and it is equally clear that there are a lot of dorky players here.

The neighbors and contractors are supposed to have leability insurance to protect others from their stupidity. You have the right to be compensated for their intrusion and incompetence.

Yuck!


Bob Wulkowicz

Reply to post by Wulkowicz, on June 28, 2000 at 12:49:35:


It would be my assumption that the maple would survive the root loss. But, the tree does have a realistic potential for structural damage a dozen years down the road from root decay with migration into the trunk from the excavation damage.

Now that I think about it, the construction must have included the involvement of an architecy or engineer in order to get a building permit. File a complaint with the city and include the questions of who is responsible. Those are the people you should also expect to have safeguarded you from the damages resulting from the excavation.

Professionals in any craft or trade have requirements to think ahead and to be competent. Just hold them to it.--and it doesn't have to happen only in a court. You probably have a certain number of administrative remedies available as well.


Good Luck,


Bob

Reply to post by Wulkowicz, on June 28, 2000 at 12:49:35:

Bob, there are two issues - or two sorts of issues - here. One is physical, factual cause and effect. The second is what the tree owner can do about it. IF the law supports the "MA rule," and inherent "self-help doctrine" the neighbor, contractors and professionals all had the "right" to do what they did. Not nice, but their right. If on the other hand the law in the state involved encumbers that right with a duty of reasonable care the tree owner might have a right of recovery. That's the point. It is not a cut and dried case based on physical facts alone.

Reply to post by Bob W, on July 15, 2000 at 12:24:09:

Bob, there's certainly "realistic potential for [ADDITIONAL] structural damage a dozen years down the road from root decay with migration into the trunk from the excavation damage."

It seems much more likely to me that the municipality's concern would be over the current structural damage to the root systems. Without more information about the height of the tree, where the 3 foot diameter was taken, what the targets were, what the remaining root system was like, etc. it's a little fuzzier than with that information. But with root destruction along a line 1 foot from the trunk there are three (3) published protocols (Mattheck, Smiley & Fraedrich, Wessolly) that would probably rate this as having a significant risk of failure. Notwithstanding any limitations in the data sets behind these protocols a municipality might be considered negligent for ignoring them unless there was highly confident expert opinion that there was no significant risk.

Reply to post by jps, on July 06, 2000 at 17:51:43:


You did quite well, an excellent comment...

for some of us, our verse just gets more and more blank..


Bob Wulkowicz