                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0033-14T1

EDWARD J. SCANNAVINO,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                            April 14, 2016
v.
                                          APPELLATE DIVISION
MARIE WALSH and EVERETT WALSH,

     Defendants-Respondents.
____________________________________

         Argued February 2, 2016 – Decided April 14, 2016

         Before Judges Reisner, Hoffman and Leone.1

         On appeal from the Superior Court of New
         Jersey, Law Division, Bergen County, Docket
         No. DC-16378-13.

         Robert M. Mayerovic     argued   the   cause   for
         appellant.

         James   H.  Foxen   argued the   cause  for
         respondent (Methfessel & Werbel, attorneys;
         Mr. Foxen, on the brief).

     The opinion of the court was delivered by

LEONE, J.A.D.

     Plaintiff Edward J. Scannavino appeals the Special Civil

Part's dismissal of his complaint against defendants Marie and




1
  Judge Hoffman did not participate in oral argument. He joins
the opinion with the consent of counsel. R. 2:13-2(b).
Everett Walsh.2          Plaintiff alleges defendants improperly allowed

the   roots    of       trees    on   their   property     to   cause   damage   to    a

retaining      wall       between      the    parties'     properties.        Because

defendants did not plant or preserve the trees, they were a

natural     condition           for   which        defendants   were    not   liable.

Accordingly, we affirm.

                                              I.

      The following facts are drawn from the testimony in the

three-day bench trial, and from Judge Susan J. Steele's written

opinion.      Plaintiff and defendants own adjoining properties in

Carlstadt.         Plaintiff does not live at his property, which is

occupied      by    a    tenant.       Defendants      bought   their    property     in

February 2004 and have resided there since.

      Plaintiff's property and defendants' property are separated

by a retaining wall made out of cinder blocks.                          The retaining

wall is approximately four feet high and one hundred feet long.

After 2004, a mulberry tree and some shrubs began growing on

defendants' property near the retaining wall.3                    The trees did not

exist in 2004 when defendants bought their property, and Marie


2
  Because defendants share a last name, when referring to Marie
we use her first name.
3
  Like the parties and the trial court, for ease of reference we
will refer to the mulberry tree and shrubs collectively as
"trees."



                                              2                               A-0033-14T1
did not plant the trees.                 The trial court found the presence of

the trees was a natural occurrence.

       Once the trees began growing, Marie or her son trimmed the

trees every year.            However, they never trimmed any of the roots

below the surface of the ground.                      No evidence was presented that

trimming the trees above the ground had any effect on the growth

of the roots.

       Plaintiff testified that he first noticed damage to the

retaining wall in January 2012.                           Plaintiff asserted that the

underground roots from the trees caused the retaining wall to

tilt.       Shortly thereafter, he sent a letter to Marie expressing

concern about the damage.                 Marie then hired workers to trim some

of   the      trees    near    the       retaining         wall.         In   October     2012,

plaintiff       sent       Marie    a    second       letter,      via    certified       mail,

reiterating         that     "the       trees    on       your    property      have     caused

excessive damage to my retaining wall," but warning Marie not to

have    her    employees       enter       his       property      to    remove    the    trees

without first supplying plaintiff with proof of insurance and

permits.       Marie did not respond.

       On    July     22,    2013,       plaintiff        filed    a     complaint     against

defendants.           He    alleged      that    their      careless,         negligent,     and

grossly       negligent       maintenance            of   their    property       caused     the

damage to the retaining wall.                   He sought $12,750 in damages.




                                                 3                                     A-0033-14T1
    At trial, plaintiff, his tenant, and Marie testified.                             Both

parties    also    called    witnesses       to    testify    to       the   amount    and

nature of the damage to the retaining wall.                       Defendants' expert

opined that improper installation, or "simple wear, tear, and

deterioration," could have caused the damage to the retaining

wall.     Moreover, Marie asserted that when she and her husband

moved onto the property, the retaining wall was already tilting

and had some cinder blocks missing.

    The     trial   court    issued    its        verdict    in    a    July   15,    2014

written opinion.       The court found that the trees near the wall

were a "naturally occurring condition and therefore defendants

cannot be held liable for the condition of the wall."                          Plaintiff

appeals.

                                       II.

    We      must    hew     to   our   standard         of    review.            "'Final

determinations made by the trial court sitting in a non-jury

case are subject to a limited and                    well-established scope of

review.'"     D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)

(citation omitted).         "'[W]e do not disturb the factual findings

and legal conclusions of the trial judge unless we are convinced

that they are so manifestly unsupported by or inconsistent with

the competent, relevant and reasonably credible evidence as to

offend the interests of justice.'"                  Ibid. (citations omitted).




                                         4                                      A-0033-14T1
"To the extent that the trial court's decision constitutes a

legal determination, we review it de novo."            Ibid.

                                     III.

     "A cause of action for private nuisance derives from the

defendant's       'unreasonable    interference       with     the     use      and

enjoyment' of the plaintiff's property.           When analyzing nuisance

claims, 'our courts are guided by the principles set forth in

the Restatement (Second) of Torts.'"            Ross v. Lowitz, 222 N.J.

494, 505 (2015) (citations omitted).

     Under    the    Restatement     (Second)    of     Torts,       "neither     a

possessor of land, nor a vendor, lessor, or other transferor, is

liable for physical harm caused to others outside of the land by

a natural condition of the land."           Restatement (Second) of Torts

§ 363 (1965).       A "'[n]atural condition of the land' is used to

indicate that the condition of land has not been changed by any

act of a human being . . . .          [I]t is also used to include the

natural growth of trees, weeds, and other vegetation upon land

not artificially made receptive to them."             Id. at § 363 comment

b.

     Similarly, "a possessor of land is not liable to persons

outside the land for a nuisance resulting solely from a natural

condition    of    the   land,"   including   "trees,    weeds,       and    other

vegetation on land that has not been made artificially receptive




                                      5                                 A-0033-14T1
to it by act of man."            Restatement (Second) of Torts § 840(1) &

comment a (1979).

    However, "trees or plants planted or preserved" are "a non-

natural or artificial condition."              Restatement (Second) of Torts

§ 363 comment b (1965).           For example, where a possessor of land

or his predecessor has "planted a number of eucalyptus trees

near the boundary line of B's land," and "[t]he roots of the

eucalyptus      trees    grow     into   B's    land"     causing    damage,         the

landowner "is subject to the rule" of liability for artificial

conditions,     "since     the    eucalyptus     trees     are    not    a     natural

condition."       Restatement (Second) of Torts                 § 840 comment a,

illustration 4 (1979); see id. at § 839 ("A possessor of land is

subject to liability for a nuisance caused . . . by an abatable

artificial condition on the land" under certain conditions).

    We have recognized that the Restatement (Second) of Torts

"draws a distinction between nuisances resulting from artificial

and natural conditions of land.              The former are actionable; the

latter are not."        D'Andrea v. Guglietta, 208 N.J. Super. 31, 36

(App.   Div.)    (citing    Restatement        (Second)    of    Torts    §§    839-40

(1979)), certif. denied, 105 N.J. 555 (1986).                       Thus, we have

"held that injury to an adjoining property caused by the roots

of a planted tree was actionable as a nuisance."                         Id. at 37;

accord Deberjeois v. Schneider, 254 N.J. Super. 694, 700 (Law




                                         6                                     A-0033-14T1
Div. 1991) (citing Restatement (Second) of Torts § 363 (1965)),

aff'd o.b., 260 N.J. Super. 518 (App. Div. 1992); see also Black

v. Borough of Atlantic Highlands, 263 N.J. Super. 445, 453 (App.

Div. 1993) ("liability in tort to adjoining property owners may

be established for damages proximately flowing from dangerous

conditions     caused   by    overhanging    branches    or   matter   dropping

from   trees   which    are   not   deemed   'natural'    when   specifically

planted for the purposes of the defendant landowner").

           The rationale for the property owner's
           liability in this case is not because of the
           natural process of the growth of the tree
           roots. Instead it is the positive act – the
           affirmative act — of the property owner in
           the actual planting of the tree which
           instigated the process.   The fact that the
           affirmative act is helped along by a natural
           process does not thereby make the condition
           a natural one within the meaning of the
           traditional rule.

           [Deberjeois, supra, 254 N.J. Super. at 703-
           04 (emphasis added).]4




4
   Our affirmance in Deberjeois reaffirmed the principles
distinguishing natural and artificial conditions, despite our
earlier statement that it "appears that even the distinction
between   natural  and   artificial  conditions   might  now   be
considered anachronistic."    Burke v. Briggs, 239 N.J. Super.
269, 275 (App. Div. 1990) (finding no strict liability in
nuisance where a branch of the defendant's tree fell on the
plaintiff's garage). In any event, Burke distinguished D'Andrea
"because of the unusual nature of the intrusion in that case,"
namely root growth. Id. at 274-75. As root growth is the issue
here, the principles of Deberjeois and D'Andrea are controlling.



                                       7                               A-0033-14T1
    Here, the trial court found the tree roots that grew and

allegedly damaged the retaining wall were a natural condition.

Marie testified that the trees naturally grew on the land and

that she had not planted the trees.                    The trial court credited

this testimony and we find no reason to "'disturb the factual

findings and legal conclusions of the trial judge'" as they were

supported     by    "'competent,         relevant      and   reasonably      credible

evidence.'"         D'Agostino,         supra,   216    N.J.    at    182   (citation

omitted).

    Plaintiff           argues   that    defendants'     "intervening"       acts    of

"maintenance and nurturing" changed the "natural" characteristic

of the trees and made defendants liable for the damage to the

retaining   wall.          However,      plaintiff     failed    to    present    this

argument to the trial court.               Generally, New Jersey "'appellate

courts will decline to consider questions or issues not properly

presented to the trial court when an opportunity for such a

presentation       is    available      unless   the    questions     so    raised   on

appeal go to the jurisdiction of the trial court or concern

matters of great public interest.'"                 State v. Robinson, 200 N.J.

1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 60 N.J.

229, 234 (1973)).           However, as the trial court anticipated and

addressed this issue, we will consider it.




                                           8                                  A-0033-14T1
      The    Restatement         (Second)       of        Torts,       supra,   may    permit

liability       for     damage   caused     by       a    tree     not    planted      by   the

possessor of land where the possessor has "preserved" the tree.

Id.   at    §     363    comment    b.          However,         "[t]he       'preservation'

envisioned by the comment means some sort of affirmative action

on the part of the defendant and not its failure to act."                                  Beals

v. State, 721 P.2d 1154, 1158 (Ariz. Ct. App. 1986) (rejecting

the argument that "refusing to allow others to clear a channel

through     the    vegetation      amounted          to    a   'preservation'          of    the

vegetation").         There was no evidence defendants took affirmative

action to preserve the trees.                   Nor is there evidence that they

engaged     in     any     "nurturing"      like           fertilizing,         or    in    any

"maintenance"         designed     to    keep    the       trees       alive    or    growing.

Rather, they simply cut back the trees above the ground.

      For several reasons, we need not explore whether evidence

of trimming or pruning that improves the health or growth of a

tree would be sufficient to convert a "natural" tree into an

"artificial       condition."5          First,       there       was     no   evidence      that


5
  Some courts have criticized the rule of the Restatement
(Second) of Torts because "it would often be difficult to
ascertain whether a tree of natural growth might not be in part
the result of human activity, such as cultivating, fertilizing,
trimming, etc." Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 362
(Tenn. 2002) (quoting Sterling v. Weinstein, 75 A.2d 144, 147
(Mun. Ct. App. D.C. 1950)); Iny v. Collom, 827 N.Y.S.2d 416, 420
(N.Y. App. Term 2006).



                                            9                                         A-0033-14T1
defendants'       trimming     had      improved     the    trees'       health      or

accelerated the growth of their roots.                Second, the trial court

considered       "whether    [Marie's]       intervention    with      the    tree   by

periodically trimming it has any effect on her liability" and

found that "[a] thorough review of the testimony and evidence

fails to demonstrate that any actions undertaken by [Marie] or

her agent caused the damage to the wall."                   Third, at appellate

oral argument, plaintiff stated he was not asking us to infer

that cutting back the trees had increased root growth.

      Rather, plaintiff takes the position that by cutting back

the   trees,     even   if   it   did    not   increase     the    roots'      growth,

defendants became liable for the damage caused by the roots.

This argument is contrary to the rationale of the Restatement

(Second)    of    Torts.      "The    rule     of   non-liability       for    natural

conditions of land is premised on the fact that it is unfair to

impose liability upon a property owner for hazardous conditions

of his land which he did nothing to bring about just because he

happens to live there."           Deberjeois, supra, 254 N.J. Super. at

702-03.    Because defendants' cutting back the trees did nothing

to "bring about" the root growth, neither the trees nor the

damage    was    "brought    about"     or    "precipitated       by   the    property

owner's affirmative act."             Id. at 703-04.         The trees and the

damage were not "'conditions which have arisen as the result of




                                         10                                   A-0033-14T1
some    human     activity,'"       and    the    growth      of    the    roots       was    not

"'changed by any act of a human being.'"                           Id. at 704 (emphasis

altered) (citation omitted); see Restatement (Second) of Torts §

840     comment     a     (a   natural      condition         "does       not    comprehend

conditions that would not have arisen but for the effect of

human activity").

       Moreover,        plaintiff's       argument   "leads         to    the    anomaly       of

imposing liability upon one who" cuts back wild growth "'while

precluding liability of an adjacent landowner who allows the

natural condition of his property to "run wild."'"                                   See Lane,

supra, 92 S.W.3d at 362 (citation omitted); Hale v. Ostrow, 166

S.W.3d 713, 718 (Tenn. 2005).                The Restatement (Second) of Torts

should    not     be    read   to    create       such   an    unnecessary            anomaly.

Further, defendants did at least some of their cutting back in

response to plaintiff's complaints.

       Plaintiff argues that liability is necessary to avoid self-

help that might involve his entry onto defendants' property.

There was no showing that such entry was necessary here.                                       In

fact,     plaintiff's          letter       suggested         abatement          might         be

accomplished, at least in part, on his own property.                                    "Under

common    law     principles,       defendants       were      entitled         to    cut     off

invading    tree       roots   by   exercising       self-help,"          and        "there    is

general agreement . . . that a neighbor may resort to self-help




                                             11                                        A-0033-14T1
to sever and remove invading tree roots."              D'Andrea, supra, 208

N.J. Super. at 34-35.         Those principles are reflected in the

Restatement (Second) of Torts § 210 comment e (1965) ("where one

person plants on his own land a tree, the roots . . . of which

in course of time extend into neighboring land in the possession

of the actor, [it is] the privilege of the actor to cut off the

encroaching   .   .   .   roots").         In   any   event,   entry   onto     a

neighboring property to abate a private nuisance is permissible

under certain circumstances.         Id. at § 210(1).

    Plaintiff argues that if we were to adopt the Restatement

(Third) of Torts § 54 (2012), then defendants would be liable

for the damage to the retaining wall because they failed to

exercise reasonable care in allowing the tree's roots to damage

the retaining wall.       That section provides in pertinent part:

         (a) The possessor of land has a duty of
         reasonable care for artificial conditions or
         conduct on the land that poses a risk of
         physical harm to persons or property not on
         the land.    (b) For natural conditions on
         land that pose a risk of physical harm to
         persons or property not on the land, the
         possessor of the land (1) has a duty of
         reasonable care if the land is commercial;
         otherwise (2) has a duty of reasonable care
         only if the possessor knows of the risk or
         if the risk is obvious.

         [Ibid.]6

6
  We express no opinion on whether defendants would be liable if
the Restatement (Third) of Torts applied.       We note that a
                                                     (continued)


                                      12                               A-0033-14T1
      However,        as    noted    above,      our      Supreme     Court    recently

reiterated that "[w]hen analyzing nuisance claims, 'our courts

are   guided     by    the    principles      set      forth    in    the   Restatement

(Second) of Torts.'"              Ross, supra, 222 N.J. at 505.               The Court

in Ross continued to rely upon the Restatement (Second) of Torts

even though it was aware of the Restatement (Third) of Torts.

Id.   at   505    n.7,      510   n.9.     "Because       we    are   an    intermediate

appellate court, we are bound to follow the law as it has been

expressed by . . . our Supreme Court."                    Lake Valley Assocs., LLC

v. Twp. of Pemberton, 411 N.J. Super. 501, 507 (App. Div.),

certif. denied, 202 N.J. 43 (2010); see, e.g., Lodato v. Evesham

Twp., 388 N.J. Super. 501, 507 (App. Div. 2006) (declining to

deviate    from       the    Supreme     Court's     view      "immunizing     abutting

residential landowners from liability").                       Therefore, we decline

plaintiff's       invitation        to   adopt      and    apply      the   Restatement

(Third) of Torts to replace the Restatement (Second) of Torts'

provisions governing such private nuisance claims.




(continued)
comment to Section 54 states that it imposes no duty "to inspect
for latent danger."    Id. at § 54 comment c.       Thus, where,
unknown to a homeowner, "a native tree on his property has
developed an internal disease, weakening it," the homeowner "had
no duty to inspect trees naturally on his property and thus is
not liable to" a person whose parked car is damaged when a piece
of the tree breaks off during a storm. Id. at § 54 comment c,
illustration 1.



                                           13                                   A-0033-14T1
    Because the trial court   found the trees were a natural

condition, the court properly dismissed plaintiff's complaint.

Thus, we need not reach his argument regarding the level of

damages he should receive.

    Affirmed.




                              14                      A-0033-14T1
