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Alvarez v. Katz

Supreme Court of Vermont

June 19, 2015

Bruce Alvarez and Janet Alvarez
Sheldon M. Katz and Claudia Berger

On Appeal from Superior Court, Chittenden Unit, Civil Division Dennis R. Pearson, J.

Norman Williams and David A. Boyd of Gravel & Shea PC, Burlington, for Plaintiffs-Appellees.

Claudia Berger and Sheldon M. Katz, Pro Ses, South Burlington, Defendants-Appellants.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


¶ 1. New England poet Robert Frost once observed that “[g]ood fences make good neighbors.” Robert Frost, Mending Wall, in North of Boston (Edward Connery Latham ed., 1977). The same, it appears, cannot be said of good trees. This is a case of protracted litigation, with extensive motion practice, between neighbors over a maple tree. For the reasons stated herein, we vacate the injunction and remand to the trial court for entry of judgment in favor of appellants Claudia Berger and Sheldon Katz and for determination of the form of declaratory relief in their favor regarding removal of the encroaching roots and branches from the Berger/Katz property.

¶ 2. Berger and Katz own property at 54 Central Avenue in South Burlington in the Shelburne Bay area. The Alvarezes own the adjoining lot just to the north at 52 Central Avenue. The property is part of a residential neighborhood consisting of shallow lots with a limited view of Lake Champlain.

¶ 3. The maple tree in question is about sixty-five years old and stands about sixty-five feet tall. The trunk or stem of the tree is located entirely on the Alvarez property, approximately two feet from the property line. Although the superior court considered the tree to “effectively” be on the property line, the parties agree that the property line does not pass through the trunk of the tree, but lies to the south of the tree trunk. Further, there is no evidence that the tree was either planted as, or intended to be depictive of, the property boundary. When the Alvarezes bought their property approximately twenty-five years ago, the tree was already about one foot in diameter at the base. Approximately half of the branches and roots from the tree now cross the property boundary and encroach onto the Berger/Katz lot. Some roots extend under the existing deck on the Berger/Katz home.

¶ 4. For several years Berger and Katz have sought to expand their home by constructing a two-story addition on the rear which would occupy roughly the same existing footprint as the house and deck at present. Berger and Katz have received the necessary permits for construction of the addition. The plans for the construction of the addition to the Berger/Katz residence would necessitate cutting the roots and branches that are encroaching onto their property. This could encompass up to half of the tree’s roots and branches.

¶ 5. Efforts to amicably resolve the problem of the maple tree in light of the planned Berger/Katz addition went for naught. In 2013, when Berger and Katz considered taking unilateral action to trim the tree’s roots and branches, the Alvarezes filed for and received a temporary injunction, and later a permanent one. The superior court found it more likely than not that removal of 50% of the tree’s roots and branches as contemplated would result in the premature death of the tree, perhaps within five years and probably within ten from the time of cutting. The final injunction barred the trimming of more than 25% of the roots and branches of the tree.

¶ 6. The trial court granted the temporary injunction, employing what it dubbed as the “urban-tree rule.” The moniker attached to this theory stemmed from the trial court’s belief that California, New York, and New Jersey place restrictions on the right of an adjoining landowner to trim roots or branches intruding onto their land from a neighbor’s property due to the urban nature of those states. Under the “urban-tree rule, ” as described by the trial court, trimming the roots or branches of an encroaching tree may be proscribed if the trimming will destroy the tree. Although the judge hearing the permanent injunction questioned the validity of the “urban-tree rule, ” he felt it improper to apply a different legal analysis, relying upon it as the “law of the case.”

¶ 7. This appeal from the permanent injunction followed. We review the superior court’s decision to grant injunctive relief for an abuse of discretion. Obolensky v. Trombley, 2015 VT 34, ¶ 18, ___ Vt. ___, ___ A.3d ___. “We will not reverse the trial court’s decision if the record below reveals any legal grounds that would justify the result.” Alberino v. Balch, 2008 VT 130, ¶ 7, 185 Vt. 589, 969 A.2d 61 (mem.).

¶ 8. Appellants allege the superior court erred in granting an injunction because the common law allows for an absolute right of a landowner to trim intruding branches and roots regardless of the impact on the offending tree; because there is no showing that the cutting would cause irreparable harm sufficient to support an injunction; and because injunctive relief results in a taking of appellant’s property without compensation. Because we reaffirm Vermont’s long-standing right of a property owner to trim branches and roots from an encroaching tree without regard to the impact that such trimming may have on the health of the tree, and vacate the injunction on that basis, we do not reach appellant’s other arguments.

¶ 9. Vermont has long recognized ownership of property to include the ownership of that which is below the ground and that which is attached overhead. Stratton v. Lyons, 53 Vt. 641, 643 (1881) (“[W]hoever is in possession of the surface of the soil is in law deemed to be in possession of all that lies underneath the surface. Land includes not only the ground or soil, but everything attached to it, above or below.”). The right of a property owner to trim non-boundary trees back to the property line cannot be gainsaid. This right has been clear for at least the last 100 years. Cobb v. W. Union Tel. Co., 90 Vt. 342, 344, 98 A. 758, 759 (1916) (“[I]t is a sound principle that where a tree stands wholly on the ground of one and so is his tree, any part of it which overhangs the land of an adjoining owner may be cut off by the latter at the division line.”). The superior court considered this case to be one of first impression in Vermont because of the anticipated adverse-and likely fatal-effect the proposed root-and-branch cutting ...

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