Tree Maintenance Revisited

Paul G. Sanderson

In the February 2009 issue of New Hampshire Town and City, we discussed the law of tree maintenance and the challenges presented to municipal officials attempting to keep roadsides safe and properly maintained. Since that time, the issue has been visited by both the legislature and the New Hampshire Supreme Court. This article updates our earlier advice on the issue.

What hasn't changed is the fact that trees have a special place under our law, involving the interests of the abutting property owner, the municipality and the public utility whose poles and lines occupy the right of way. What have changed are the scope and details of the duty imposed by both statute and case law to exercise reasonable care to prevent decayed or defective trees from causing harm to others.

We start by determining who owns the tree in question. Because a tree is a product of the soil, the tree is owned by the owner of the land where it is rooted. This responsibility may be modified somewhat if the tree is located on soil subject to an "easement," that is a right held by someone else to use that land. If a person has an easement for vehicular access over another person's land, that easement includes the right to maintain or remove any tree that prevents the allowed vehicular movement over the land. Such an easement may or may not include the responsibility to maintain or remove a tree if it becomes a hazard. In the case of highways, abutters almost always own the rights of way and the trees, Bigelow v. Whitcomb, 72 N.H. 473 (1904), subject to the municipality's transportation easement to maintain a public road over the land. This includes the right and responsibility to maintain trees in such a way that they are not a hazard to travelers. Public utilities install and maintain poles and wires under licenses from the towns and cities, but they require additional permission to trim tree limbs.

Rights of Tree Owners
Landowners generally have a right to grow, maintain or cut down their trees as they see fit. They also have a right not to have their trees pruned or removed without their consent, except pursuant to certain statutory procedures discussed on the next page. If a municipality or utility cuts a tree or "mutilates" it without receiving landowner permission, the tree owner has the right to damages under the common law. See Darling v. Newport Electric Light Co., 74 N.H. 515 (1908). The value of a tree is not always limited to its value as lumber (sometimes called stumpage value). In past cases, trees have been given enhanced commercial value for apple production, Elwood v. Bolte, 119 N.H. 508 (1979), and aesthetic value as shade trees. Barker v. Publishers' Paper Co., 78 N.H. 571 (1918). A failure to obtain advance permission for cutting might even be held to be a "timber trespass" in violation of RSA 227-J:8 and :8-a. The penalty may be either civil or criminal, and the damages may be enhanced by the court by no less than three nor more than 10 times the market value of the trees removed or defaced. For example, in McNamara v. Moses, 146 N.H. 729 (2001), a damage multiplier factor of five was imposed upon a person who cut trees upon a prescriptive right of way without permission, and damages were assessed into the thousands of dollars.

New Tort Liability for Tree Owners
Until recently, it appeared that landowners had no legal duty to maintain the trees on their property to prevent harm to others from falling branches. This view resulted from language in Belhumeur v. Zilm, 157 N.H. 162 (2008), a case in which the plaintiff was injured when wild bees nesting in a tree on the defendant's property attacked him while he was in his own yard. The plaintiff claimed that the tree and bee nest were a private nuisance and that the defendant had been negligent in failing to remove the tree or bee nest.

The Supreme Court ruled that the case should be dismissed. As to the nuisance claim, the Court stated, "The 'established common law rule is that a landowner is under no affirmative duty to remedy conditions of purely natural origin upon his land even though they are dangerous or inconvenient to his neighbors.' Stated alternatively: 'In order to create a legal nuisance, the act of man must have contributed to its existence.'" Belhumeur, supra. at 235 (citations omitted).

As to the negligence claim, the Court held "that to require a landowner to abate all harm potentially posed to his neighbors by indigenous animals, plants, or insects naturally located upon his property would impose an enormous and unwarranted burden." Since the statement of the rule in the opinion expressly included the word "plants," landowners were assumed to be safe from common law tort liability for damage from falling trees or branches if they simply let nature take its course.

The Court revisited the issue in the 2011 case of Pesaturo v. Kinne, No. 2010-127, February 25, 2011. Here, the owners of adjoining property had a dispute over two trees, both rooted on defendant's land, but whose branches hung over the line and bothered the plaintiff. Plaintiff claimed that an oak tree with "swinging, dead limbs" limited her use of her driveway, while a pine tree had limbs that broke off and damaged a boundary fence. Just as in the Belhumeur case, the liability claims were based upon "private nuisance" and "negligence."

The Court rejected the private nuisance claim and restated the rule that, for a private nuisance to exist, there must have been some affirmative act taken to cause the problem. Apparently, this means that a person must have planted or tended the tree in question in some manner which caused the harm to defendant. A tree which has taken root naturally apparently cannot be the cause of a private nuisance.

The negligence claim was another matter. "We believe that a landowner should be held responsible for a decayed or defective tree that he permits to harm another because it would be an 'inherent injustice' to allow a landowner to 'escape all liability for serious damage to his neighbors merely by allowing nature to take its course.'" The Court retreated from its language in Belhumeur and announced a new rule, "…a landowner who knows or should know that his tree is decayed or defective and fails to maintain the tree reasonably is liable for injuries proximately caused by the tree, even when the harm occurs outside of his property lines. However, a landowner does not have a duty to consistently and constantly check all trees for nonvisible decay. Rather, the manifestation of the tree's decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm."

Implications of the New Rule
The Pesaturo case serves as notice that all landowners now have a legal duty to maintain trees appropriately so as not to constitute an unreasonable risk of harm to others. This includes owners of trees in the highway rights of way. The abutting landowner now faces the risk of liability to the traveling public or a public utility if a defective or decayed tree falls on a pedestrian, vehicle or utility line.

Also, a new theory of liability may be suggested by the Pesaturo case for trees that are intentionally planted in the highway right of way. Suppose an abutting landowner has planted trees in or near the right of way, and those growing trees now interfere with utility reliability, or they now shade the road and create conditions for enhanced winter icing. Because the trees have been planted, are they not now a "private nuisance" which may result in common law liability to the municipality or the utility?

Although municipalities usually do not own trees growing along the edges of public highways, it is no longer prudent for municipal officials to simply "let nature take its course," or otherwise fail to actively manage the condition of such trees, because municipalities have the duty to maintain municipal highways. RSA 231:3. For municipally owned property, the duty falls to the governing body. In towns, the authority to act comes from the RSA 41:11-a duty to manage town-owned property. These trees must be inspected and maintained by the public, at public expense.

Statutory Procedure for Tree Removal by Municipalities
How may a municipality resolve these seemingly conflicting duties to respect the property rights of abutting landowners and to protect the public from hazardous trees? Strong incentives are present for officials to remain vigilant about the condition of trees in the right of way. If a falling tree or limb brings wires down from poles, it is local first responders who will be in the greatest danger from any energized wires. In those municipalities that have erected their own fire alarm or data cables to connect municipal facilities or schools, their own infrastructure can be brought down by such trees. If a tree falls and obstructs a road, bridge or sidewalk, it will create an "insufficiency" and expose the municipality to liability if its response is deemed "grossly negligent." RSA 231:90 through :92-a.

Under RSA 231:150 municipalities have a duty and right to remove from highway rights of way all trees and bushes that may damage or pose a danger to the highways or traveling public so long as the vegetation has a circumference of less than 15 inches at a point four feet from the ground. However, for trees with a circumference of more than 15 inches at a point four feet off the ground, consent of the landowner must usually be obtained for pruning or removal. If the highway has been designated a "scenic road" by the town pursuant to RSA 231:157, trees along the scenic road shall not be cut, damaged or removed without the prior written consent of the planning board or other designated municipal body. The municipality may proceed under RSA 231:145 to have a tree declared a public nuisance. Notice must be provided to the landowner, an opportunity for a local hearing provided, and the landowner is provided a further right to appeal the issue to the Superior Court within 30 days of the decision declaring the tree a public nuisance. All of these procedures are unnecessary in the case of an "imminent threat to safety or property."

Improved Statutory Procedure for Public Utilities
Public utilities also have a statutory duty to maintain the reliability of their services and to protect the value of their equipment placed into the public right of way by license. These duties are enforced by the Public Utilities Commission acting under RSA 374 and their associated administrative rules. Yet, if either the municipality or the utility fails to obtain the consent of a tree owner, there may be liability for significant damages resulting from the injury or removal of the vegetation.

Following the ice storm of 2008, the legislature reviewed the statutory scheme contained in RSA 231. Laws 2009, Chapter 267 significantly amended sections 145 and 172 to improve the definition of vegetation that constitutes a "public nuisance" in the highway right of way and to improve the procedure used to obtain consent to cut from private landowners. Removal of a tree is now allowed if it constitutes a "public nuisance by reason of unreasonable danger to the traveling public, spread of tree disease, or the reliability of equipment installed at or upon utility facilities." The public utility may petition the selectmen under the procedures of RSA 231:145. The removal may be immediate if there is an "imminent threat to safety or property."

Alternatively, a utility may utilize the procedure contained in RSA 231:172. At least 45 days in advance of a non-emergency effort to prune or remove a shade or ornamental tree, notice is provided to the landowner. If the landowner does nothing, the cutting or removal may then proceed. If the landowner does object, a hearing is available before the local board of selectmen, who shall determine if the action is necessary and assess any damages against the utility to compensate the owner for loss of the tree.

New Incentives for Cooperation?
As a result of the recent statutory changes and the Pesaturo v. Kinne decision, it may be easier in the future for municipalities and utilities to obtain consent from abutting landowners for tree pruning or removal. Landowners now are exposed to tree liability not only to the traveling public but to municipalities and utilities. Landowners now have a greater risk of liability to the municipality for damages from falling trees under RSA 236:39, which creates civil liability for a person who "shall place any obstruction in a highway or cause any defect, insufficiency or want of repair of a highway which renders it unsuitable for public travel…." Statutory damages include road repair costs and sums the municipality may be compelled to pay for injuries to third parties. Under an amendment effective January 1, 2009, such damages may be "established through an appropriate contribution claim or under rules of joint and several liability." This statute clearly applies to intentional conduct and may extend to negligence of the tree owner.

The landowner may now also have a greater risk of liability to the public utility for negligently causing damage to utility service. If a landowner negligently allows a defective or decayed tree to fall on a utility line, there may be common law liability to the utility. The chances that such liability could be imposed are enhanced if the landowner has received notice of the location and condition of such trees from either the municipality or utility.

Local officials and utilities are often willing partners in undertaking tree maintenance actions in public spaces. Now landowners, too, have a strong incentive to cooperate in these efforts in order to avoid liability as well as the significant costs of tree maintenance and difficult task of finding a vendor who is willing to work for a private landowner on trees that are very close to utility property.

Despite these real incentives, it is not always a simple matter for local public works officials or utility line crews to obtain landowner consent to prune or remove a tree that an individual wishes to preserve, even if there is objectively verifiable risk of damage to the highway or overhead utility lines. It may not be readily apparent who should be contacted to request permission to maintain or remove a tree if the property owner is not resident at the location, the land is vacant, or the land is owned by an entity such as a trust or corporation, or the land has multiple individual owners holding the land in common. In these cases, the statutory remedy will still be required.

Hopefully these recent changes in statute and case law will prevent both the wholesale or indiscriminate cutting of our scenic trees and the sort of neglect that endangers all of us when we pass near a tree that could fall and kill. Landowners, municipalities and utilities all have the incentive, with appropriate professional assistance, to inspect and maintain trees in accordance with best management practices to preserve most trees for many years to come and to plant the right species in the right places in the future.

Paul Sanderson is a Staff Attorney with the New Hampshire Local Government Center's Legal Services and Government Affairs Department. Local officials in NHMA-member municipalities may contact LGC's legal services attorneys for more information on this and other topics of interest Monday through Friday 8:30 a.m. to 4:30 p.m. by calling 800.852.3358, ext. 384.

Suggested Steps for Municipalities

  • Inspect
    All municipally owned land and public highways should be regularly inspected to determine if there are trees which should be maintained or removed. New inspections should occur after significant weather events such as ice storms, windstorms or heavy rains. Records should be kept to document steps taken to actively manage the risk. The inspections may be coordinated with public utilities serving the area. Following an inspection, a plan may be developed to address trees of concern. If a landowner refuses to give consent to vegetation management, assist the utilities in review and resolution of the problem location.
  • Warn
    When there are insufficient resources immediately available to maintain or remove the damaged trees, post some type of warning until corrective action may be taken.
  • Adopt a Policy
    Adopt a written policy establishing orderly procedures and priorities that take into account the scope of the municipality's tree maintenance responsibilities and its personnel and financial resources. This will help to define what is reasonable for the municipality to accomplish under the circumstances.
  • Educate
    Undertake a local educational campaign, either alone or in cooperation with the utilities, to highlight the risks of poorly maintained trees. Once alerted, many people will agree to prune their own vegetation, contract with professionals or give their consent to municipal or utility crews to safely remove the dead or diseased trees and limbs.
  • Work with the Local Conservation Commission
    Work with the local conservation commission and others such as University of New Hampshire Cooperative Extension to continue highlighting the issue in future years. Vegetation management involves not only annual pruning but also management practices to prevent the problem in the future. Identify species which can or cannot be safely planted near roads and utility lines. There are many resources available from professional foresters, the utilities and others, such as the National Arbor Day Foundation, to help in the selection of the right tree to plant in the right place.
  • Work with the Planning Board
    Work with the planning board to create site review and subdivision regulations to implement these best management practices.
  • Tighten Up Local Regulations
    Improve local regulations to better define what constitutes an "interference with public travel" using the authority of town meeting under RSA 31:51, or a "public nuisance by reason of danger to the traveling public" using the authority of the governing body under RSA 231:145. Use the regulations to create a coordinated approach to vegetation control by the governing body, road agent or public works department, police and fire departments and the emergency management director.
  • Work with the Utilities
    Create and maintain a better working relationship and lines of communication with utilities at both the governing body and departmental levels. Learn which company has primary maintenance responsibility in the event of an outage. Exchange contact information to allow a faster and easier flow of information in both directions.
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