Trees in the Right of Way: Ice Storm Highlights Uncertainty

By Paul G. Sanderson, Esq.

As this article is written, the lights have only recently come back on following the most devastating ice storm event in New Hampshire history. Starting on December 11, 2008, two inches of precipitation fell as freezing rain over a large portion of the state. Nearly everything was coated with ice, sometimes as much as an inch thick. The effect on the electric and telephone utilities was immediate and catastrophic. As noted by Public Service Company of New Hampshire (PSNH):

The peak number of customers without power was more than 320,000—which occurred during the 5:00 p.m. hour on Thursday, December 11. The damage was extensive throughout the entire state, south of the mountains. The worst hit areas include communities in the band across Southern New Hampshire: Keene, Peterborough, Hillsboro, Milford, Nashua, Manchester, Derry, Epping, Portsmouth and Rochester. By way of comparison, the January 1998 ice storm left 55,000 PSNH customers without power at its peak, and the worst storm in PSNH history prior to the December 2008 ice storm—Snowstorm Bernice in 1996—left a total of 93,000 PSNH customers without power at its peak. PSNH’s entire fleet of 190 line and tree-trimming crews was deployed immediately to begin restoring power in the early morning hours on Friday, December 12. In the following days, an additional 660 line and tree-trimming crews flooded in from as far away as Quebec, Nova Scotia, Ohio and Maryland to join the historic restoration effort. In the first six days of restoration, crews restored power to more than 250,000 PSNH customers, and replaced more than 55 miles of wire, nearly 500 transformers and about 10,000 fuses—more fuses than PSNH typically goes through in several years. By way of comparison, it took that same amount of time—six days—to restore service to 93,000 customers following Snowstorm Bernice in 1996.

The effect on the telephone system was somewhat different. Telephone wires are placed much lower on the poles, and thus didn’t suffer as much from branches striking them, or pulling them to the ground. This type of service is powered by a low level of electric current, and therefore dial tone could be maintained even though electric lines were out. However, telephone, television and Internet service from cable providers requires a working cable modem at the home, and the interruption of home electric service brought this means of communication down either immediately or when batteries in the modems were worn down. Some cellular tower locations were able to maintain service to phones with emergency power sources, while other locations went out of service.

As soon as the storm passed, temperatures dropped. Our citizens were faced with low temperatures, no power to operate heating systems, and a severely disabled communications system. It was difficult for state emergency management personnel to communicate with the public and with local first responders. It was difficult for the utilities to communicate within their own systems, and even more difficult for them to communicate widely with the public. People with special health needs or small children, and people whose homes suffered water damage as sump pumps failed, moved to regional shelters operated by municipalities and the American Red Cross. It was twelve days before the shelters could close and these vulnerable citizens could return to their homes. In the same period, many more people stayed in their homes, some with relative comfort as they used alternative heating sources, and some with a great deal of discomfort and risk to their health. For a few, these alternatives proved deadly, as they were poisoned by carbon monoxide fumes emitted by the engines of generators that were improperly placed and used.

The response by utility crews was hampered by broken trees and limbs which rendered the roads impassable by vehicles. The ability of local police, fire, ambulance and emergency management staff to respond to calls was similarly reduced. At times, these responders were forced to physically visit the homes of elderly citizens and others with vulnerabilities to assure that they were safe, since these citizens often had no working telephone or other communications device. Municipal and state public works crews faced the daunting task of clearing the roads of debris and assisting utility crews in their response. Just as power was almost fully restored, the state received two significant snowstorms within three days. The utility response was made more difficult, and state and local public works crews raced to maintain safety on the highways.

The direct financial cost of the disaster and its response remains unknown, but it will be in the many millions of dollars. The economy was damaged as the Christmas retail season was impaired. Agricultural losses from damage to maple sugar trees, plant nurseries, orchards and berry operations will become clear during the next growing season. Individual homeowners suffered property damage and increased living costs as they struggled to keep their families safe and warm. We do not yet know how the public agencies, individual homeowners or businesses will fare in their efforts to receive federal assistance, or whether private insurance claims will be successful. The Public Utilities Commission (PUC) will soon begin documenting the costs incurred by the utilities in their response, which will affect future rates charged for regulated electric and telecommunications services.

There is a general consensus that much of the damage to the utility and communication distribution wires and to service entrances on the side of homes was caused by falling trees or limbs of trees. Although basic utility services have been largely restored, recovery from this disaster is far from complete, and there are additional problems that municipalities will face during 2009. Here are some examples of the issues that will arise:

There is massive debris from trees or limbs fallen in the storm or removed during the recovery process. In the near term, what are road crews and landowners to do with this debris? While some of it may be used for next season’s firewood, what should be done with the rest of it? The options range from taking no action to collecting the material for disposal through chipping, burying or burning. Each of these has its own cost and environmental impact. The fact that much of the debris is now under snow only complicates the issue.

If the debris is located where surface water drains, future rain events may collect it and transport it to drainage structures or other areas where blockages can occur. Such blockages will create or exacerbate flooding of property or roads and cause more personal injury and property damage.

If the debris is allowed to remain in place, it has the potential to serve as fuel for fire in areas where fires are very difficult to suppress. Such fires pose a real danger to homes and could potentially destroy stands of trees that are managed as an agricultural resource or play important environmental roles as wetlands or animal habitat.

Some trees did not fall, but have been materially weakened by the storm. How will these trees be identified, and what potential do they create for further damage? Who is responsible to see to the condition of the trees, and who is responsible to make the decisions about removal or maintenance?

Once the decisions are made, who bears the cost of removal or maintenance? What role do the utilities play? Is there any municipal liability if such trees are not removed or maintained? Is there a difference if the tree impacts public property, as opposed to creating a risk between two adjacent private landowners?

Given the human and economic costs of this event, what can be done at the municipal level to either prevent a recurrence of the event, or lessen the impact of future weather related events?

Trees in and above the rights of way of highways have a special place under our law, involving the interests of three parties: the abutting property owner, the municipality and the public utility whose poles and lines occupy the right of way. The ownership of a tree depends upon who owns the land where it is rooted, because the tree is a product of that soil. In the vast majority of cases the abutting owner owns the trees because the highway is a transportation easement on land owned by abutters. Bigelow v. Whitcomb, 72 N.H. 473 (1904). Only rarely does the municipality own the land underlying a highway or individual trees within the right of way. Public utilities install and maintain poles and wires under licenses from the towns and cities, but they require additional permission to trim tree limbs. It is not a simple matter for local public works officials or utility line crews to obtain the authority to cut, prune or remove a tree, even if there is risk of damage to the highway or to overhead utility lines. It is often not easy for officials to determine who should be contacted to request permission to maintain or remove a tree. If the property owner is not resident at the location to provide consent, the process is more difficult.

Abutter Rights and Liability

Landowners generally have a right to grow, maintain or cut down their trees as they see fit. While most people might assume that every landowner has a clear legal duty to maintain the trees on their property and prevent harm from falling branches, that is not the case in our state. Cases in some other states hold that a tree owner has a duty to eliminate a known danger to adjoining land even if it results from natural growth. However, there are no reported New Hampshire cases, and a very recent case suggests that there may be no such duty. In Belhumeur v. Zilm, 157 N.H. 162 (2008), 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 defendant had known about both the tree and the bees for some time and had obtained quotes from contractors to remove the tree, but took no action. The plaintiff claimed that the tree and bee nest were a nuisance, and also 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. In its opinion, the Court stated the rule on the nuisance claim, “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, “we conclude 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."

The Belhumeur decision involved “wild animals," but since the statement of the rule in the opinion expressly included the word “plants" landowners are probably safe from common law tort liability to adjoining owners for damage from falling trees if they simply let nature take its course. However, landowners may have a somewhat greater risk of liability 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. If a utility line constructed on a private road is damaged by a tree, that is an issue between the landowner and the utility. Often the terms of an easement that allowed the utility to install service, or the service agreement with the customer, will determine what vegetation needed to be cleared, and how clearances from the wires would be maintained. In almost all of these situations, the municipality has no role in any dispute between these landowners, or landowners and the utility companies.

Municipal Authority and Liability

The legislature has provided towns with a measure of “control" over “shade and ornamental trees" within the limits of their highways pursuant to the regulatory authority granted by RSA 31:51–:52, and RSA 231:140–:158. That “control" allows immediate removal of a tree only if it “interferes with the public travel," or constitutes a “public nuisance by reason of danger to the traveling public or spread of tree disease," subject, however, to the abutter’s right to appeal to superior court within 30 days. Under RSA 231:150 municipalities have a duty at least annually to remove from highway rights of way all trees and bushes that may damage or pose a danger to the highways or traveling public, subject to notice and appeal for any tree with a circumference of 15 inches at a point four feet from the ground. Additional restrictions exist if the highway has been designated a “scenic road" by the town pursuant to RSA 231:157. Except in an emergency, 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.

Although the process of tree control is cumbersome, there are strong incentives for officials to continually manage the right of way by pruning and removing dead or diseased trees or limbs. First of all, if a falling tree or limb brings wires down from poles, it is the local first responders who will be in the greatest danger from any energized wires. Second, in those municipalities that have erected their own fire alarm cables, or cables to connect municipal facilities or schools, their own infrastructure can be brought down by such trees. Finally, fallen trees can create liability. If a tree falls and obstructs a road, bridge or sidewalk, it might create an “insufficiency" and expose the municipality to liability if its response is deemed “grossly negligent." RSA 231:90 through :92-a. Thus, elected officials, public works officials, information technology managers and police, fire and emergency management officials all benefit from actions taken to prevent tree strikes.

Public Utilities Authority and Liability

The regulated utilities, cable providers and other occupants of utility poles also have incentives to avoid damage to their physical plant caused by tree strikes. The rules of the PUC provide that electric utilities (PUC 300 series) and telecommunications providers (PUC 400 series) “use all reasonable means within industry practices to avoid interruptions to service," and in the event of an interruption, to restore service in the shortest possible time. All such outages must be reported to the PUC staff, and written reports must be subsequently filed to explain the outage and the resolution of the problem. Commission staff has the ability to periodically inspect the physical plant of the utilities to assure that it is being reasonably maintained. The PUC has the power to order the regulated utilities to change their practices in the best interest of the public.

Most poles in our state are jointly owned between a regulated electric utility and a regulated telecommunications provider. The joint owners have “intercompany operating agreements" and related operating procedures to describe both planned maintenance of the physical plant and response to unplanned outages and accidents. These agreements are filed with the PUC and form a part of the basis for the rates charged to consumers for service. Unplanned outages are expensive, potentially cause disputes between the joint owners, and divert personnel and material from planned maintenance. Such outages cause difficulties from a customer-service point of view, and the PUC is always there to review the problem and the response. Therefore, local officials and the utilities are often willing partners in tree maintenance actions in the public spaces. This cooperation and assistance are also required by statute in RSA 231:145 when the removal of a hazardous tree is required.

Consent of the landowner must be obtained in the majority of cases before a tree is pruned or removed along our roadways. If a landowner refuses consent, the utility may petition the selectmen, who “shall determine whether the cutting or mutilation is necessary and if determined to be necessary, they shall assess the damages that will be occasioned to the owner thereby." RSA 231:172. If a utility cuts the tree or “mutilates" it without landowner or selectmen permission, the owner has the right to damages under the common law. In Darling v. Newport Electric Light Co., 74 N.H. 515 (1908), the utility argued that a license to put poles in the highway gave it the right to cut limbs that extended over the right of way. But the Court held that the utility was required to obtain the owner’s permission. In response to the argument that no damages were due, the Court wrote:

The defendant’s argument is based on the erroneous assumption that the plaintiff’s rights in his trees were created by this statute … [But h]is rights existed at common law, and the statute prevents their invasion and limits the manner in which they may be appropriated for certain public uses … A failure to comply with [the statute] made the defendant’s acts unlawful.

On the whole, the private landowner has relatively little incentive to maintain trees, and both the utility and the municipality are deterred by the cost and the time consuming procedures required to cut trees against the will of the owner. Even if the tree deteriorates to the point of becoming a public nuisance, the expense of cutting or removal is transferred from the individual to the municipality and the utility by RSA 231:145 and :146.

Suggested Steps for Municipalities

There are steps municipalities can take to try to improve the situation.

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 overgrowth and dead or diseased trees and limbs. If a landowner refuses to give consent to vegetation management, assist the utilities in review and resolution of the problem location.

Work with the local conservation commission and others such as UNH Cooperative Extension to continue to highlight the issue in future years. Vegetation management is ongoing and involves not only annual pruning, but also management practices to prevent the problem in the future.

Work with the planning board to create site review and subdivision regulations to prevent the future planting of trees in places where conflict with utilities will result. In addition, the regulations can encourage the planting of species of trees that will grow to lower heights, or otherwise avoid conflict with utilities. 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.

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 team-oriented and coordinated approach to vegetation control by the governing body, road agent or public works department, police and fire departments, and the emergency management director.

Create and maintain a better working relationship and lines of communication with the utilities that serve your municipality 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 faster and easier flow of information in both directions.

Following this weather-related disaster, there is a real opportunity to improve the relationship of municipalities and the utilities, and to improve the management of roadside vegetation across the state. The legislature will certainly investigate the aftermath of the ice storm and consider changes in statute or public policy. Hopefully we will not see recommendations leading to the wholesale or indiscriminate cutting, defacement or removal of our scenic trees, but instead recommendations for thoughtful improvements in the management of all trees in the area of utility lines. If trees are pruned in accordance with best management practices, most can be maintained in their present locations for many years to come. With the help of arborists and foresters, our citizens can manage their lands by avoiding the installation of the wrong species in the wrong place, and encouraging the right species in the right place. This will be better for management of the roads, the integrity of our utility and communications systems, and ultimately, the beauty of our landscape. It will take a partnership of landowners, local officials, foresters, land management professionals and utilities to make such improvements for the future.

Paul Sanderson is a Staff Attorney with the New Hampshire Local Government Center’s Legal Services and Government Affairs Department.