Minnesota and its neighboring states are blessed with a variety of trees. In fact, Minnesota has 35 commonly-found tree species. Each summer seems to bring a new variety of disputes between neighbors regarding encroaching roots and limbs. Some of the most common tree-related disputes involve damage caused by trees, the cutting or trimming of trees, and the use of trees as boundary markers. This article explores five things to consider before removing a tree.

Nuisance Trees

Minnesotans are well experienced with their neighbors’ trees overhanging onto their property, cracking their sidewalks or clogging their sewers. Under Minnesota law, those occurrences can constitute a nuisance. See Minn. Stat. § 561.01 A nuisance is defined as “anything which is . . . an obstruction to the free use of the property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance”.

The leading case on nuisance trees in Minnesota is Holmberg v. Bergin, 172 N.W.2d 739 (Minn. 1969). In that case, the Bergins planted a tree 15 inches north of their boundary line. Twenty-seven years later, the tree had grown to a height of 75 feet and had protruded 8 inches into the Holmbergs’ property. Id. at 741. The growth of the tree had created a large hump around its base, had caused the Holmbergs’ sidewalk to tip toward their house, funneled water into the Holmbergs’ basement and cracked a second sidewalk installed to correct the drainage problem. Id. Both parties’ expert witnesses agreed that removing the encroaching roots and hump of soil would result in the death of the tree. The district court found that the tree was a nuisance and ordered its removal, but denied the Holmbergs’ request for damages “due to their failure to take advantage of earlier opportunities to remove roots.” Id. at 742.

Self-Help on Tree Issues

Landowners have the right to exercise self-help when dealing with invading tree branches or roots. In some states, self-help is the exclusive remedy for a landowner to deal with these problems. Michalson v. Nutting, 175 N.E. 490 (Mass. 1931). The majority of states, including Minnesota and North Dakota, recognize a landowners’ right to self-help, but also allow them to pursue a case for damages when encroaching trees have caused physical damage. See Holmberg, see also Herring v. Lisbon Partners Credit Fund Ltd. Partnership, 823 N.W.2d 493(N.D. 2012). However, before rushing into court, homeowners should consider taking the law (or saw and shovel) into their own hands. The general rule is that a landowner may prune branches or roots that encroach onto their property. See Holmberg, 172 N.W.2d at 744 When exercising self-help however, property owners should be mindful to act in a reasonable manner and must be careful to avoid causing injury to the tree. If a landowner fails to act reasonably in pruning tree roots or branches, he or she runs the risk of being held liable for negligence. Booska v. Patel, 30 Cal. Rptr.2d 241 (Cal. Ct. App. 1994). See also Rector v. C.S. McCrossan, Inc., 235 N.W.2d 609 (Minn. 1975).

Boundary Trees

In Minnesota’s more agricultural past, it was common for landowners to use trees to mark property boundaries. However, the mere presence of a tree on or near a property boundary is not sufficient to make that tree a “boundary tree” for legal purposes. Holmberg, 172 N.W.2d 743. Instead, the adjoining owners must intend, agree or be in consent of the location of the tree as marking the boundary. Joint care of the tree, or use as a partition between properties are all evidence of the necessary intent, agreement or consent.

If a tree is considered a boundary tree, one owner cannot unilaterally cut the tree down or otherwise destroy it. Id. at 742. In fact, owners of a boundary tree are considered tenants in common. As a result, an owner wishing to destroy the tree, like the neighbor in Holmberg, must obtain the consent of the other or establish that the tree is a “nuisance.”

Damage to Trees

Minnesotans love their trees. Recognizing this fact, our legislature long-ago created a statute that authorizes an award of triple damages to landowners that fall victim to an interloper unlawfully cutting their trees. Minn. Stat. § 561.04. Before tripling an award, however, the court (or jury) must determine the value of the destroyed trees. Without suffering actual damages, a plaintiff cannot recover triple damages. Meixner v. Buecksler, 13 N.W.2d 754, 757 (Minn. 1944).

When a landowner’s trees have been unlawfully destroyed, the question arises as to the appropriate measure of damages. Minnesota courts have drawn a distinction between ornamental and shade trees on one hand, and standing timber or non-ornamental trees on the other. When ornamental or shade trees are damaged, courts may consider replacement cost, to the extent the cost is reasonable or practical. Rector, 235 N.W.2d at 611. In Rector, a road contractor negligently suffocated the roots of shade trees located on church property at the intersection of Highway 36 and Hamline Avenue in Roseville. The trees had “substantial value for shade and ornamental purposes.” Id. at 610. The trees also served as a sound barrier and screen from highway traffic. Because of the trees’ intrinsic value, the Rector court upheld use of replacement value as a proper measure of damages, despite the fact the church was unable to prove the value of the property as a whole had been diminished. The Rector opinion makes clear that when arriving at a damages award, juries have the discretion to balance replacement value with the impact of tree removal on the parcel as a whole.

In contrast, when standing timber or non-ornamental trees are removed, the damages are based on the diminution in the value of the real property as a whole. Baillon v. Carl Bolander & Sons, 235 N.W.2d 613 (Minn. 1975). In Baillon, the plaintiffs refused to grant the state an easement for highway construction purposes. Despite the lack of an easement, the road contractor later went onto plaintiffs’ land and cut down trees and shrubs that were not protruding into the highway. The trees were “quite small, ill-formed, and not particularly desirable as shade trees or ornamental trees.” Id. at 615. Accordingly, the court allowed only $500 in damages for the difference in the value of the land before and after the tree cutting. The Baillon court specifically rejected the replacement value approach discussed in Rector, reasoning that it could “involve an expense greatly out of proportion to the actual damage to the real estate. Id.

Triple Damages for Intentional Tree Removal

As mentioned above, Minnesota Statutes § 561.04 provides for tripling of damages for unlawful tree cutting. Obviously, triple damages can be a heavy penalty and their availability makes the decision to take self-help remedies, that may later be found unlawful, a more serious one.

A “casual or involuntary” trespass will not subject a party to an award of triple damages. Although “casual” trespasses can offer a tree-cutting defendant a chance at avoiding the assessment of triple damages, Minnesota courts have defined the term to mean “thoughtless, accidental or unintentional.” Baillon, 235 N.W.2d at 615. Accordingly, courts have assessed triple damages where the tree-cutting was intentional but not necessarily done with malice. Id.

Where the destruction of trees is truly unintentional, the courts will avoid assessing triple damages. One such case is Pluntz v. Farmington Ford-Mercury, Inc., 470 N.W.2d 709 (Minn. App. 1991). In Pluntz, a driver had a heart attack and drove through a grove of spruce trees. Id. at 710. Under those fairly unique circumstances, the Minnesota Court of Appeals declined to award triple damages.

Takeaway

When it comes to trees, Minnesota law allows neighbors to take the law into their own hands under the right circumstances. If a court later disagrees with the would-be lumberjack’s actions, however, the damages can be substantial. Accordingly, it is wise for homeowners to contract legal counsel before starting the chainsaw.