      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON £2
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JENNIFER MUSTOE,                         )
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                                                No. 74166-7-1                SO       o-n
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                    Appellant,           )                                   jr

                                                DIVISION ONE
       v.                                )                                   OK

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XIAOYE MA, an individual adult and  )                                         en
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ANTHONY JORDAN, an individual adult, )          PUBLISHED OPINION                           »—*




                    Respondents.         )      FILED: April 4. 2016

       Spearman, C.J. —A large portion of the roots from two trees growing on

Jennifer Mustoe's property had encroached onto the property of her neighbors,

Anthony Jordan and Xiaoye Ma. After Jordan removed the encroaching roots,

Mustoe sued her neighbors for damage to the trees and for nuisance. The trial

court found, as a matter of law, that Jordan was entitled to remove those portions

of roots that had encroached onto Ma's property and that in so doing, he did not

owe Mustoe a duty of due care to prevent damage to the trees. Accordingly, it
                                                                                      WASHI'NGAlPEAL_S"ILEO
dismissed Mustoe's claims on summary judgment. Mustoe appeals. Finding no

error, we affirm.

                                     FACTS

       Jennifer Mustoe purchased the real property located at 109 Raintree

Loop, Rainier, Washington in 2006. Her neighbors to the south were Xiaoye Ma
No. 74166-7-1/2


and Anthony Jordan. Ma owned the neighboring property located at 111 Raintree

Loop and Jordan resided there with her.

       Mustoe had two large Douglas fir trees located entirely on her property,

about 2.5 feet from the property line. In October 2013, Jordan dug a ditch on

Ma's property along the border of Mustoe's lot. The ditch was 18-20 inches deep.

In the process, Jordan exposed and removed the trees' roots, leaving them to

extend only 3-4 feet from the trunks. This resulted in a loss of nearly half of the

trees' roots, all from the south side, exposing them to southerly winds with no

support. The damaged trees posed a high risk of falling onto Mustoe's home. The

landscape value of the trees was estimated to be $16,418; the cost of their

removal was estimated to be $3,913.

       On January 6, 2014, Mustoe filed suit against Ma and Jordan, asserting

that Jordan had negligently, recklessly, and intentionally excavated and damaged

her trees, along with other property and emotional distress damages. The parties

brought cross motions for summary judgment. On December 5, 2014, the trial

court granted Ma and Jordan's motion and dismissed Mustoe's claims. Mustoe

appeals.

                                   DISCUSSION


       We review summary judgment de novo. Smith v. Safeco Ins. Co., 150

Wn.2d 478, 483, 78 P.3d 1274 (2003). Summary judgment is appropriate if there

is no genuine issue as to any material fact and the moving party is entitled to a

judgment as a matter of law. CR 56(c). By filing cross motions for summary
No. 74166-7-1/3


judgment, the parties concede there were no material issues of fact. Tiger Oil

Corp. v. Dep't of Licensing. 88 Wn. App. 925, 930, 946 P.2d 1235 (1997).

Mustoe acknowledges the law in Washington that an adjoining landowner can

engage in self-help and trim the branches and roots of a neighbor's tree that

encroach onto his or her property. Indeed, both parties cite Gostina v. Rvland,

116 Wash. 228, 199 P.298 (1921), which specifically held that in such

circumstances the adjoining owner's remedy "is to clip or lop off the branches or

cut the roots at the [property] line." Id. at 233 (quoting 1 C.J. Adjoining

Landowners § 94, at 1233 (1914)). But Mustoe argues that the Gostina court

"also acknowledged that the right to self-help does not extend to removing the

tree itself." Br. of Appellant at 6. From this, she reasons that Gostina "does not

immunize a landowner against liability for damage to the trimmed trees" and

argues that, as a matter of first impression, we should hold that in exercising self-

help, a "landowner owes a duty of care to prevent damage to the trees

themselves . . .." ]d_, We disagree and decline to extend Washington law as

Mustoe proposes.

       Mustoe argues that while Gostina sets forth the right of self-help, it also

recognizes a duty to act in good faith and to act reasonably so as not to cause

damage to the non-encroaching portions of the trees. In support of the argument,

she cites the Gostina court's quotation from Wood on Nuisances (3d Ed.) § 108.

The treatise states:


       Trees whose branches extend over the land of another are not
       nuisances, except to the extent to which the branches overhang the
       adjoining land. To that extent they are technical nuisances, and the
       person over whose land they extend may cut them off, or have his
No. 74166-7-1/4


      action for damages, if any have been sustained therefrom, and an
      abatement of the nuisance against the owner or occupant of the
      land on which they grow; but he may not cut down the tree, neither
      can he cut the branches thereof beyond the extent to which they
      overhang his soil.

Gostina, 116 Wash, at 232. Instead of supporting her position, however, the

quoted passage merely affirms that an adjoining landowner may trim only those

branches or roots that encroach on his own property. The passage neither

asserts nor implies that in so doing the landowner owes a duty to act in good

faith or reasonably to prevent damage to the trees.

       Mustoe also cites Sandberg v. Cavanaugh Timber Co., 95 Wash. 556,

561, 164 P. 200 (1917) for the proposition that "[i]t is now generally recognized

that each member of society owes a legal duty, as well as a moral obligation, to

his fellows. He must so use his own property as not to injure that of others." Br. of

Appellant at 6. But the case is inapposite. In Sandberg, a timber company was

engaged in logging operations on its own property. While so engaged, one of its

machines started a fire which spread some two miles to Sandberg's property

where it caused considerable damage. Sandberg sued the timber company and

the jury found in her favor awarding damages. The timber company appealed. In

rejecting the appeal, the court cited with approval numerous cases from other

states which held to the effect that there is a duty to use reasonable care to

prevent the spread of a fire from one's own property to that of another. Sandberg,

at 560-61. The circumstances in Sandberg are in no manner analogous to the

circumstances presented in this case. A duty to prevent the spread of fire to a

neighboring property in no way implies a duty that attends to the exercise of self-
No. 74166-7-1/5


help to defend against encroaching roots or branches. The case is of no help in

resolving the issue before us.

       Mustoe next argues that under state law, each member of society owes a

broader legal duty to his fellow citizens and must not use his own property to the

injury of others. Mustoe cites an exception to the common enemy doctrine in

water trespass cases as an example of this duty. Currens v. Sleek, 138 Wn.2d

858, 861-62, 983 P.2d 626 (1999).

       The common enemy doctrine allows landowners to dispose of unwanted

surface water in any way they see fit, without liability for resulting damage to

one's neighbor. "The idea is that 'surface water... is regarded as an outlaw and a

common enemy against which anyone may defend himself, even though by so

doing injury may result to others.'" ]d. at 862 (quoting Cass v. Dicks, 14 Wash.

75, 78, 44 P. 113 (1896)). In Currens, the court adopted the due care exception,

under which "a landowner will be shielded from liability only where the changes in

surface water flow are made both in good faith and in such a way as not to cause

unnecessary damage." jd. at 868. The "duty of due care" "serves to cushion the

otherwise harsh allocation of rights under the common enemy doctrine," which

would otherwise allow unlimited self-help against surface waters regardless of

any damage to neighboring property." Id. at 864. Mustoe analogizes and argues

that a landowner's right to self-help against encroaching roots and branches

should be cushioned by a duty of due care to prevent damage to the neighbor's

trees themselves. But she cites no authority, from this or any other jurisdiction,

for extending this exception to apply to anything other than surface water issues.
No. 74166-7-1/6


       Additionally, in our view, any such analogy between Mustoe's tree roots

and surface water as a "common enemy" is inapt. Surface water is a common

enemy precisely because it is a force of nature which may indiscriminately affect

any landowner. As such, each landowner may defend against it so long as he or

she does not do so in a manner that unnecessarily redirects the wrath of the

common enemy upon a neighbor.1 Unlike surface water, tree roots and branches

are not a force of nature which indiscriminately wreak havoc among adjoining

landowners. Instead, they are an encroachment upon the land of one's neighbor.

Mustoe's argument that tree roots should be treated like surface water is

unpersuasive.

        Mustoe also relies heavily on two cases from other jurisdictions, but

neither is persuasive. In Booska v. Patel, 24 Cal. App.4th 1786, 30 Cal.Rptr.2d

241 (1994), on facts nearly identical to those in this case, the trial court

dismissed the plaintiff's claims on summary judgment. The appellate court

reversed stating that "whatever rights Patel has in the management of his own

land, those rights are tempered by his duty to act reasonably." Id. at 1791.

Similarly, in Fliegman v. Rubin, 1 Misc.3d 127(A), 781 N.Y.S.2d 624, 2003 NY

Slip Op 51542 (App. Div.), the court, citing Booksa with approval, reversed the

trial court's summary dismissal of plaintiff's claims for damages to his trees

allegedly resulting from the defendant's severance of roots that had encroached




         1"When determining liability under the common enemy doctrine, the due care exception
requires the court to look only to whether the landowner has exercised due care in improving his
or her land, i.e., whether the method employed by the landowner minimized any unnecessary
impacts upon adjacent land." Currens, 138 Wn.2d at 866.
No. 74166-7-1/7


on to his property.2 The court held there was an issue of fact as to whether

severance of the trees roots damaged plaintiffs trees because "the right to self-

help is limited, in that an adjoining landowner's right to engage in self-help 'does

not extend to the destruction or injury to the main support system of the tree

. . ..'" Id. at 2 (quoting 1 N.Y. Jur 2d, Adjoining Landowners § 57).

        But Booksa and Fliegman appear to be outliers, a fact noted by the most

recent court to consider the issue. In Alvarez v. Katz, 124 A.3d 839 (2015), the

trial court relied on Booksa and Fliegman to impose a duty to act reasonably in

exercising the self-help remedy. On appeal, the Vermont Supreme Court

rejected both cases, holding that the "right to cut encroaching trees where they

enter the land of another, without regard to the impact on the encroaching tree by

such cutting, is well established under Vermont law." jd. at 843. The court further

observed that "[wjhile courts have imposed limitations in a few cases, the

[general] rule enjoys extremely widespread support." (Citations omitted). We

likewise are persuaded that the law in Washington, as set out in Gostina, is

consistent with the general rule and reject Mustoe's invitation to hold otherwise.

        Mustoe contends that her nuisance action is viable because Jordan's

excavation and removal of tree roots was unreasonable in relation to the harm it

caused to her trees. She argues that the question of whether his actions were

reasonable is at least a question of fact for the jury.




         2 We note that Fliegman is an unreported decision but because it may be cited under the
rules of New York State, Mustoe properly cites it here under GR 14.1(b). See Eaton v. Chahal,
146 Misc.2d 977, 983, 553 N.Y.S. 2d 642, 646 (1990) (unreported decisions from intermediate
appellate courts are entitled to respectful consideration but are not binding precedent).
No. 74166-7-1/8


       A nuisance is an unreasonable interference with another's use and

enjoyment of property. Kitsap County v. Allstate Ins. Co., 136 Wn.2d 567, 592,

964 P.2d 1173 (1998). RCW 7.48.010 defines an actionable nuisance for which

damages and other relief are available as "whatever is injurious to health or

indecent or offensive to the senses, or an obstruction to the free use of property,

so as to essentially interfere with the comfortable enjoyment of the life and

property. . . ." In a nuisance case, the fundamental inquiry concerns whether the

use of certain land can be considered reasonable in relation to all the facts and

circumstances. Riblet v. Spokane-Portland Cement Co.. 41 Wn.2d 249, 254, 248

P.2d 380 (1952), overruled on other grounds by Bradley v. Am. Smelting & Ref.

Co., 104 Wn.2d 677, 709 P.2d 782 (1985). When applying the nuisance doctrine,

a court balances the rights, interests and convenience unique to the case. Id.

       Jordan argues that Mustoe has no action for nuisance because she has

no legally recognized right. (Citing Collinson v. John L. Scott, Inc., 55 Wn. App.

481, 778 P.2d 534 (1989)). In that case, one set of neighbors brought an action

against the other for building a condominium that blocked their western view. jd.

at 482. The court found that the plaintiffs had no right to bring a nuisance action

because they "did not possess any easement of light, air, or view, nor do they

possess any legal cause for complaint or interference therewith by the lawful

erection of a building on respondents' property." ]cL at 488 (citing Wolf v. Forcum,

130 Ind.App. 10, 161 N.E.2d 175, 178 (1959)). We agree. Mustoe has not

established that she has any legal cause for complaint or interference with the

lawful removal of the roots on Ma's property.
No. 74166-7-1/9


        Mustoe correctly argues, however, that even if Jordan acted lawfully in

severing the tree roots, however, he may still commit a nuisance if in so doing he

unreasonably interfered with her use and enjoyment of her property. Tiegs v.

Watts, 135 Wn.2d 1,13, 954 P.2d 877 (1998).3 But Mustoe's nuisance claim still

fails because in Washington, "a 'negligence claim presented in the garb of

nuisance' need not be considered apart from the negligence claim." Atherton

Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506,

527, 799 P.2d 250 (1990). Where the alleged nuisance is a result of the alleged

negligent conduct, the rules of negligence are applied. Ia\ Here, Mustoe's

nuisance claim arises from Jordan's actions that damaged the trees; the

nuisance is the result of his alleged breach of duty. Because Mustoe's

negligence claim fails,4 the trial court correctly dismissed her nuisance claim.

        Finally, Mustoe argues she is entitled to damages under the timber

trespass statute, RCW 64.12.030. The statute reads "[w]henever any person

shall cut down, girdle, or otherwise injure, or carry off any tree,... timber, or shrub

on the land of another person,... without lawful authority, in an action by the

person, city, or town, against the person committing the trespasses or any of

them, any judgment for the plaintiff shall be for treble the amount of damages



        3 "A lawful business is never a nuisance per se, but may become a nuisance by reason of
circumstances. A person who conducts a business or a plant lawfully and in the best manner
practicable with a sound operation may still commit a nuisance if the operation interferes
unreasonably with other persons' use and enjoyment of their property." Tiegs v. Watts, 135
Wn.2d at 13. (Footnotes omitted).

        4 Jordan also argues that a nuisance claim cannot be based on a single act, citing out-of-
state case law as authority. Washington courts have not yet addressed whether one act may
constitute a nuisance. We do not reach that issue, however, in light of our conclusion that
because Mustoe's nuisance claim sounds in negligence it need not be considered separately.
No. 74166-7-1/10


claimed or assessed." RCW 64.12.030. By its own terms, the statute only applies

to persons acting without lawful authority. Because Mustoe has not shown that

Jordan acted unlawfully when he removed roots that encroached onto Ma's

property, the claim fails.

       Affirmed.




WE CONCUR:
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