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SJC-12432

              MARY SHIEL       vs.   JOHN ROWELL & another.1



            Norfolk.       March 8, 2018. - July 16, 2018.

        Present:   Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
                              Kafker, JJ.


    Nuisance.      Trespass.    Real Property, Nuisance, Trespass.



     Civil action commenced in the Quincy Division of the
District Court Department on July 24, 2015.

    A motion to dismiss was heard by Mark S. Coven, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


    William F. Spallina for the plaintiff.
    Daniel S. McInnis for the defendants.


    CYPHER, J.      At the root of this case lies a distinctively

neighborly type of dispute about who should have the

responsibility for monitoring and cutting back an intruding




    1   Keli-Jo Rowell.
                                                                      2


tree.    The defendants, Keli-Jo and John Rowell,2 own the property

adjacent to the plaintiff, Mary Shiel.     On the Rowells' property

sits a one hundred foot tall sugar oak tree with branches

reaching over Shiel's property.    Shiel filed a complaint with

claims of private nuisance and trespass against the Rowells

after the tree allegedly caused algae buildup on the roof of

Shiel's home and the Rowells refused to cut it down.        Shiel

sought money damages for the damage to her roof and an

injunction demanding that the overhanging branches be cut back.

     A District Court judge dismissed Shiel's claims as

precluded by Ponte v. DaSilva, 388 Mass. 1008, 1008 (1983)

(individual whose property is injured by neighbor's healthy tree

has no cause of action against landowner of property upon which

tree lies).    The Appellate Division of the District Court

affirmed, Shiel appealed, and we granted her application for

direct appellate review.    Shiel concedes that Ponte is

controlling but asks that we overrule it and related cases.         The

Rowells urge us to ground our decision in stare decisis and not

to disturb existing law.    We affirm.

     Discussion.    1.   Massachusetts rule.   The law in

Massachusetts has long been that a landowner may not hold a

neighbor liable for damage caused by that neighbor's healthy

     2 The plaintiff, Mary Shiel, brings all claims against both
defendants, so we refer to the defendants collectively as "the
Rowells."
                                                                     3


trees.   See Ponte, 388 Mass. at 1008; Michalson v. Nutting, 275

Mass. 232, 232-233 (1931).   See also Kurtigian v. Worcester, 348

Mass. 284, 290 (1965) (rule does not apply to unhealthy trees).

In Michalson, supra at 232-233, roots from the defendants'

poplar tree clogged the plaintiffs' sewer and drain pipes and

cracked the plaintiffs' cement cellar, risking serious damage to

the house's foundation.   We concluded that the defendants could

not be held liable for that damage because "an owner of land is

at liberty to use his land, and all of it, to grow trees."     Id.

at 233, citing Bliss v. Ball, 99 Mass. 597, 598 (1868).   We

recognized that the plaintiffs had the right to cut off

intruding boughs and roots and reasoned that "it is wiser to

leave the individual to protect himself, if harm results to him

from this exercise of another's right to use his property in a

reasonable way, than to subject that other to the annoyance, and

the public to the burden, of actions at law, which would be

likely to be innumerable and, in many instances, purely

vexatious."   Michalson, supra at 234.

    We reaffirmed this rule in Ponte, where the plaintiff

sought damages for personal injuries after slipping in her

driveway, which was covered by debris from her neighbor's tree.

Ponte, 388 Mass. at 1008 ("The failure of a landowner to prevent

the blowing or dropping of leaves, branches, and sap from a

healthy tree onto a neighbor's property is not unreasonable and
                                                                         4


cannot be the basis of a finding of negligence or private

nuisance").     Landowners who are disturbed by their neighbor's

trees are not without recourse.        A property owner retains "the

right to remove so much of the tree as overhangs his property."

Id., citing Michalson, 275 Mass. at 233-234.        This rule has come

to be known as the "Massachusetts rule."        See, e.g., Melnick v.

C.S.X. Corp., 312 Md. 511, 520 (1988).

     2.    Hawaii rule.   Shiel urges us to adopt the so-called

"Hawaii rule," which grants neighbors a right of action to

resolve disputes in court over healthy trees.        It allows a

neighbor to require that the tree owner pay for damage and cut

back branches and roots if the tree causes, or there is an

imminent danger of it causing, sensible harm3 to the neighbor's

property.    Whitesell v. Houlton, 2 Haw. App. 365, 367 (1981).

The neighbor could not hold the tree owner liable for harm

caused by the tree casting shade or dropping leaves, flowers, or

fruit.    Id.   The Hawaii rule, like the Massachusetts rule,

allows the neighbor to retain the right to cut back overhanging

branches or intruding roots.     Id.




     3 The court in Whitesell v. Houlton, 2 Haw. App. 365 (1981),
did not define "sensible harm," and no Hawaii appellate court
opinions have defined the phrase. The only definition of
"sensible" in Black's Law Dictionary that could fit the context
here is "[p]erceptible through the senses; appreciable."
Black's Law Dictionary 1569 (10th ed. 2014).
                                                                      5


    Shiel contends that the Massachusetts rule is outdated and

should be replaced by the Hawaii rule because today people are

living in closer proximity to one another on smaller tracts of

land than they were when the Massachusetts rule was adopted.

She argues that trees today are more likely to cause damage to

neighbors' property and tree owners are better able to manage

their trees, which justifies giving parties a right of action to

resolve disputes in court.     The Rowells urge us not to disturb

the Massachusetts rule, based on the doctrine of stare decisis

and because, in their view, the Massachusetts rule is more

sensible.    They argue that there is no compelling reason to

abandon the Massachusetts rule and that upholding precedent

supports certainty in the law.

    3.      Stare decisis.   The principle of stare decisis is not

absolute.    Stonehill College v. Massachusetts Comm'n Against

Discrimination, 441 Mass. 549, 562, cert. denied, 543 U.S. 979

(2004).     "Stare decisis is not, like the rule of res judicata, a

universal inexorable command," but "[w]hether it shall be

followed or departed from is a question entirely within the

discretion of the court."     Burnet v. Coronado Oil & Gas Co., 285

U.S. 393, 405-406 (1932) (Brandeis, J., dissenting), quoting

Hertz v. Woodman, 218 U.S. 205, 212 (1910).      However, adhering

to precedent is our "preferred course because it promotes the

evenhanded, predictable, and consistent development of legal
                                                                      6


principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the

judicial process."       Payne v. Tennessee, 501 U.S. 808, 827

(1991).      "It also reduces incentives for challenging settled

precedents, saving parties and courts the expense of endless

relitigation."      Kimble v. Marvel Entertainment, LLC, 135 S. Ct.

2401, 2409 (2015).       "Parties should not be encouraged to seek

reexamination of determined principles and speculate on a

fluctuation of the law with every change in the expounders of

it."       Mabardy v. McHugh, 202 Mass. 148, 152 (1909).   Reliance

upon judicial precedent is of particular concern in "contract

and property law cases, in which reliance upon existing judicial

precedent often influences individual action."4      Halley v.

Birbiglia, 390 Mass. 540, 545 (1983).

       We may uproot precedent when "the values in so doing

outweigh the values underlying stare decisis."       Franklin v.

Albert, 381 Mass. 611, 617 (1980).       Overruling precedent

requires something above and beyond mere disagreement with its

analysis.      Stonehill College, 441 Mass. at 588 (Sosman, J.,

concurring) ("Thus, in order to overrule a prior case, it is not

enough that some or all of the Justices of this court have some

intellectual or academic disagreement with the earlier analysis



       We recognize that this is a tort case, but also one that
       4

implicates property law.
                                                                    7


of the issue").   A lack of unforeseen problems caused by

precedent justifies adhering to precedent unless there are

developments that justify revisiting the law.    Id. at 588-589

(Sosman, J., concurring) (we are "disinclined to fix something

that is not broken").

    We would discern a need to change the Massachusetts rule if

it were outdated and no longer fit the circumstances of

contemporary life.   "One of the great virtues of the common law

is its dynamic nature that makes it adaptable to the

requirements of society at the time of its application in

court."   Lewis v. Lewis, 370 Mass. 619, 628 (1976), quoting

State v. Culver, 23 N.J. 495, 505, cert. denied, 354 U.S. 925

(1957).   We invite challenges to antiquated laws.   "When the

rationales which gave meaning and coherence to a judicially

created rule are no longer vital, and the rule itself is not

consonant with the needs of contemporary society, a court not

only has the authority but also the duty to reexamine its

precedents rather than to apply by rote an antiquated formula."

Lewis, 370 Mass. at 620, 628 (abolishing interspousal tort

immunity, which had developed when "common law treated husband

and wife as 'a single person, represented by the husband'"

[citation omitted]).    Our case law reflects our adaptability to

fit such shifting needs, even with respect to real property,

where the rules of stare decisis are particularly important.      We
                                                                    8


once distinguished between types of visitors5 in premises

liability law derived from English common law, but concluded

that the distinction could no longer be "justified in an urban

industrial society."   Mounsey v. Ellard, 363 Mass. 693, 706-707

(1973) (establishing common duty of reasonable care owed to all

lawful visitors).   In the seven years following Mounsey, we

reformed premises liability law to be consistent with this

decision.   See Papadopoulos v. Target Corp., 457 Mass. 368, 372

(2010), citing Young v. Garwacki, 380 Mass. 162, 166 (1980).

     4.   Massachusetts rule is not outdated.   We see no reason

to consider the Massachusetts rule outdated.    It may be true

that people today are living in closer proximity to one another

on smaller tracts of land than they were when the Massachusetts

rule was adopted in the early Twentieth Century.   But if changes

in property ownership would lead us to believe that tree owners

are now better able to monitor their trees, the same would be

     5 "If the plaintiff was an invitee, defined as a person
invited onto the property by the property owner for the property
owner's benefit, the property owner owed a duty to use
reasonable care to keep the premises in a reasonably safe
condition in view of all the circumstances, including the
likelihood of injury to others, the seriousness of the injury,
and the burden of avoiding the risk. . . . If the plaintiff was
a licensee, defined as a person who entered onto the landowner's
property for the licensee's own convenience and pleasure, the
property owner owed a duty only to forbear from inflicting
wilful or wanton injury on him. . . . If the plaintiff was a
trespasser, the property owner's only duty was to refrain from
wanton and wilful misconduct." (Emphases in original;
quotations and citations omitted.) Papadopoulos v. Target
Corp., 457 Mass. 368, 371-372 (2010).
                                                                     9


true for their neighbors to monitor and trim encroaching trees.

It may be easier to recognize impending or potential harm to

one's own property from overhanging branches and intruding roots

than it would be for the tree owner to recognize what is

happening next door.    And even if it is also true that trees

today are more likely to cause property damage to neighbors'

property, it would be "undesirable to categorize living trees,

plants, roots, or vines as a 'nuisance' to be abated."     Melnick,

312 Md. at 520-521.

     Other jurisdictions have referenced the Massachusetts rule

as being outdated.     See Herring v. Lisbon Partners Credit Fund,

Ltd. Partnership, 2012 ND 226, ¶¶ 19-20; Lane v. W.J. Curry &

Sons, 92 S.W.3d 355, 361 (Tenn. 2002); Fancher v. Fagella, 274

Va. 549, 555 (2007).    A comprehensive analysis of the

Massachusetts rule demands that we examine the rationale of

other jurisdictions leading them to conclude our rule to be

obsolete.   A fair analysis of the parties' arguments also

requires such an analysis because the plaintiff relied heavily

on the analysis of other jurisdictions to support her argument

and our review of these court opinions leaves our conclusion

undisturbed.6


     6 Some jurisdictions note that the Massachusetts rule "has
been" criticized for being outdated, but do not explain how
changes in property ownership justify disregarding the
Massachusetts rule for that reason. See, e.g., Fancher v.
                                                                   10


    We agree that the traditional rule of nonliability, which

preceded the Massachusetts rule, is outdated with respect to

unhealthy trees.   The law arose when land was so unsettled and

uncultivated that the burden of inspecting it and putting it in

a safe condition would have been unduly onerous and "out of all

proportion to any harm likely to result."    W.L. Prosser & W.P.

Keeton, Torts § 57, at 354 (4th ed. 1971).   The increased

feasibility of inspecting for and resolving debilitated

conditions on one's property removes the justification for a law

that would discourage improvements to one's land.   See, e.g.,

Young, 380 Mass. at 168 (doing away with landlord-tenant

liability law that discouraged repairs of rented premises).    The

same rationale does not apply to the Massachusetts rule, which


Fagella, 274 Va. 549, 555 (2007) (adopting Hawaii rule after
stating that "[t]he 'Massachusetts [r]ule' has been criticized
on the ground that it is unsuited to modern urban and suburban
life"). See also Herring v. Lisbon Partners Credit Fund, Ltd.
Partnership, 2012 ND 226, ¶ 19, quoting Lane v. W.J. Curry &
Sons, 92 S.W.3d 355, 361 (Tenn. 2002) (criticizing Massachusetts
rule for being outdated). We trace this back to Lane, which
incorrectly interpreted and quoted another jurisdiction as if it
had criticized the Massachusetts rule for being outdated.6 Lane,
supra, citing Chandler v. Larson, 148 Ill. App. 3d 1032, 1036-
1037 (1986) ("The Massachusetts Rule, however, has been
criticized as being outdated, having evolved in an earlier time
when land was mostly unsettled and people lived predominately in
rural settings"). The criticism in Chandler was that the
"traditional rule of nonliability," not the Massachusetts rule,
was outdated, having "developed at a time when land was mostly
unsettled and uncultivated." Chandler, supra at 1036, quoting
Mahurin v. Lockhart, 71 Ill. App. 3d 691, 692 (1979). The
traditional rule shielded property owners, out of necessity,
from liability for defective or unsound trees. Chandler, supra,
quoting Mahurin, supra at 692-693.
                                                                   11


pertains only to healthy trees.    See Kurtigian, 348 Mass. at

290.

       Shiel does not point to consequences of the Massachusetts

rule that would not have been thoroughly appreciated by this

court when Michalson and Ponte were decided.7     The growth of

trees "naturally and reasonably will be accompanied by the

extension of boughs and the penetration of roots over and into

adjoining property of others."     Michalson, 275 Mass. at 233.

Our resolution has been and remains to authorize the cutting

back of overhanging branches and intruding roots.

       5.   Benefits of Massachusetts rule.   There are multiple

benefits to the Massachusetts rule still relevant to

circumstances of contemporary life.     The rule simplifies

assignment of responsibility.     See Sterling v. Weinstein, 75

A.2d 144, 148 (D.C. 1950) (adopting Massachusetts rule because

it leaves "no doubt as to the rights and obligations of the

parties").    It also minimizes legal costs to parties and the

unnecessary burdening of courts.    Other courts have recognized

as much.    See, e.g., Richmond v. General Eng'g Enters. Co., 454

So. 2d 16, 17 (Fla. Dist. App. Ct. 1984) ("It seems to us that

the recognition of an action of this type to redress a claimed



       Shiel challenges the unfairness of the Massachusetts rule
       7

and argues that it replaces the law of orderly judicial process
with self-help as the only way to adjust the rights and
responsibilities of disputing neighbors.
                                                                  12


wrong which might otherwise be obviated by the time-honored

remedy of self-help would represent a wasteful and needless use

of the judicial system").   Furthermore, we were concerned in

Michalson, 275 Mass. at 234, about vexatious lawsuits.    The

Massachusetts rule today, just as it did when Michalson was

decided, may prevent unnecessary legal harassment from neighbors

who merely have an axe to grind for reasons other than purported

tree problems.

    Conclusion.   For these reasons, we decline to fell judicial

precedent and instead reaffirm the Massachusetts rule

established in Michalson and Ponte.   We retain the law that an

individual whose property is damaged by a neighbor's healthy

tree has no cause of action against a landowner of the property

upon which the tree lies.   The District Court judge's order

allowing the defendants' motion to dismiss is affirmed.

                                   So ordered.
