[No. 16334. Department One. July 1, 1921.]
LEO G. GOSTINA et al., Respondents, v. A. L. RYLAND
et al., Appellants. «1»
ADJOINING LANDOWNERS (3) - ENCROACHMENTS. An adjoining
property owner having an absolute legal right, under Rem. Code,
SS 943, to an action to abate a nuisance caused by overhanging
branches of trees, the defendants cannot defend on the ground that
the action is inspired by spite.
NUISANCE (5) - PRIVATE NUISANCE - GROUNDS FOR INJUNCTION.
Acquiescence for several months in a nuisance occasioned by
overhanging branches and the spreading vines of a creeping plant
would not constitute an estoppel against a right of action by an
adjoining owner to abate the nuisance occasioned thereby.
ESTOPPEL (48) - EQUITABLE ESTOPPEL - ACQUIESCENCE - LACHES.
In an action to abate a nuisance under Rem. Code, SS 943, granting
the right where there is an obstruction to the free use of
property essentially interfering with the enjoyment of life and
property, proof of some actual and sensible damages, although
insignificant, will sustain plaintiff's right to have the nuisance
abated.
MACKINTOSH and BRIDGES, JJ., dissent.
Appeal from a judgment of the superior court for
King county, Gilliam, J., entered January 14, 1920,
upon findings in favor of the plaintiffs, in an action to
abate a nuisance, tried to the court. Affirmed.
Walter B. Allen, for appellants.
Warren Hardy, for respondents.
«1» Reported in 199 Pac. 298.
GOSTINA v. RYLAND. 229
July 1921 Opinion Per HOLCOMB, J.
HOLCOMB, J. - These adversaries own and reside
upon adjoining lots in the city of Seattle. Appellants
have owned and resided upon their lot for many
years. Respondents bought their lot in August, 1918.
There are growing upon appellants' lot a Lombardy
poplar tree, situated about two feet from the division
line fence separating the properties; also a fir tree in
the rear of appellants' premises, situated within two
feet of the division fence. It is alleged that some
branches of the trees overhang the premises of respondents.
Appellants also maintain a creeping vine,
growing in a rustic box on top of a large stump, a few
feet from the division fence, which is trained downward
from the stump and it is alleged that parts of
the creeping plant go through and under the division
fence, and onto the lawn on respondents' premises.
There are also some raspberry bushes and a rose bush
at the rear of appellants' premises growing near the
line which the respondents allege are permitted to
hang over the division fence.
On July 28, 1919, respondents caused their attorney
to give notice in writing to the appellants that the
branches of the fir tree (then mentioned as a pine
tree) standing upon appellants' premises, extended
over the lot of respondents, and that the needles
therefrom fell upon the lawn of respondents, injuring the
same; and that the ivy planted in the yard of appellants
ran under the fence and onto the lawn of respondents.
Demand was made that appellants, within
ten days, cut off the branches of the fir tree at the
point where they crossed the boundary line, and remove
the ivy from respondents' property, and to keep
the tree and ivy from further encroaching upon their
property.
230 GOSTINA v. RYLAND.
Opinion Per HOLCOMB, J. 116 Wash.
This demand not having been complied with, about
fifteen days thereafter respondents began their action
under the statute, Rem. Code, SS SS 943, 944 and 945, for
the abatement of a nuisance, and for such other and
further relief as might seem equitable and just.
Issue was joined as to the overhanging branches and
encroaching ivy constituting a nuisance. Findings of
fact and conclusions of law and judgment ordering
abatement of the nuisances by appellants within sixty
days, and in case of failure by them, ordering the
sheriff to do so, were entered in favor of the
respondents by the trial court, and this appeal resulted.
Appellants desired to defend on the theory that the
action by respondents was merely for spite and vexation,
and first complain because the court excluded evidence
offered by them to the effect that, when respondents
purchased their property adjoining that of appellants,
they knew of the existence and condition of
the trees and shrubs, and expressed their admiration
therefor, and had no objection to their maintenance as
they were upon the property of appellants, until after
they had had some sort of personal disagreement,
which caused their action in regard to the trees and
shrubs. The court rejected all such evidence and
offered proof, on the ground that it was immaterial,
because where branches of trees overlap adjoining
property, the owner of the adjoining property has an
absolute legal right to have the overhanging branches
removed by a suit of this character.
Section 943, Rem. Code, provides:
" . . . 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,
is a nuisance, and the subject of an action for
damages and other and further relief."
GOSTINA v. RYLAND. 231
July 1921 Opinion Per HOLCOMB, J.
Section 944, supra, provides:
"Such action may be brought by any person whose
property is injuriously affected, or whose personal
enjoyment is lessened by the nuisance. . . ."
It cannot be said that acquiescence in the existence
of the alleged nuisance for the period of a few months
is such as to constitute estoppel or equitable laches.
Whatever may have been respondents' sentiments regarding
the situation and character of the trees and
shrubs at one time, when they entered upon the enjoyment
of their own possessions, after occupancy for a
few months they gave notice on July 28, 1919, that their
permissive acquiescence in the existence of the alleged
nuisances, at least as to the fir tree and the ivy, had
ceased, and that they required the encroachment to be
stopped.
In Lonsdale v. Nelson, 2 B. & C. 311, it is held by the
English court that:
"Nuisances by an act of commission are committed
in defiance of those whom such nuisances injure, and
the injured party may abate them, without notice to
the person who committed them; but there is no decided
case which sanctions the abatement, by an individual,
of nuisances from omission, except that of cutting
the branches of trees which overhang a public
road, or the private property of the person who cuts
them. The permitting these branches to extend so far
beyond the soil of the owner of the trees, is a most
unequivocal act of negligence, which distinguishes this
case from most of the other cases that have occurred.
The security of lives and property may sometimes require
so speedy a remedy as not to allow time to call
on the person on whose property the mischief has
arisen, to remedy it. In such cases an individual
would be justified in abating a nuisance from omission
without notice. In all other cases of such nuisances,
persons should not take the law into their own hands,
232 GOSTINA v. RYLAND.
Opinion Per HOLCOMB, J. 116 Wash.
but follow the advice of Lord Hale, and appeal to a
court of justice."
"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 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." Wood, Nuisances (3d ed.), SS 108.
"It may be understood that any erection upon one
man's land, that projects over the land of another, as
well as any tree whose branches thus project, doing
actual damage, or anything that interferes with the
rights of an adjoining owner, is an actionable nuisance."
Wood, Nuisances, SS 106.
From ancient times it has been a principle of law
that the landowner has the exclusive right to the space
above the surface of his property. To whomsoever the
soil belongs, he also owns to the sky and to the depths.
The owner of a piece of land owns everything above it
and below it to an indefinite extent. Coke, Litt. SS 4.
"On the same principle it is held that the branches
of trees extending over adjoining land constitute a
nuisance - at least in the sense that the owner of the
land encroached on may himself cut off the offending
growth." 20 R. C. L. 433, 434, 435, SS 49, the cases cited.
"But whether a suit for an injunction and damages
may be maintained without proof of actual damage is
a point upon which the authorities are not very clear
or satisfactory. According to some of the decisions,
sensible appreciable damage must be shown in order to
give the overhanging branches the character of
nuisance; in other words, the fact that the branches extend
over another's land does not constitute them a
nuisance per se." 20 R. C. L. p. 433, 434, 435, SS
49
GOSTINA v. RYLAND. 233
July 1921 Opinion Per HOLCOMB, J.
Thus in Countryman v. Lighthill, 24 Hun (N.Y.) 405,
82 Hun (N.Y.) 152 (not an ancient case as respondents
state, but decided in 1881) it was held that:
"The overhanging branches of a tree, not poisonous
or noxious in its nature, are not a nuisance per so, in
such a sense as to sustain an action for damages. Some
real, sensible damage must be shown to result therefrom."
The complaint which does not describe the damages
caused will not state a cause of action.
That is our view.
It is generally the rule that "One adjoining owner
cannot maintain an action against another for the intrusion
of roots or branches of a tree which is not poisonous
or noxious in its nature, his remedy in such case
is to clip or lop off the branches or cut the roots at the
line." 1 C. J. 1233, SS 94.
See, also, Countryman v. Lighthill, supra; Crowhurst
v. Amersham Burial Board, 4 Exchequer Div. 5;
Hoffman v. Armstrong, 48 N.Y. 201, Sickles, Vol. 3;
Lyman v. Hale, 11 Conn. 177, 27 Am. Dec. 728; Skinner
v. Wilder, 38 Vt. 115, 38 Am. Dec. 645; Harndon v.
Stutz, 124 Iowa 440, 100 N. W. 329; Tanner v. Wallbrumm,
77 Mo. App. 262.
It is therefore well settled that the powerful aid of a
court of equity by injunction can be successfully invoked
only in a strong and mischievous case of pressing
necessity and there must be satisfactory proof of
real substantial damage. Tanner v. Wallbrumm, supra.
Hence, were it not for our statute of nuisances, the
respondents herein would not be accorded any judicial
relief. But our statutes accord a remedy for a very
slight nuisance: "Whatever is . . . an obstruction
to the free use of property, so as to essentially interfere
with the comfortable enjoyment of the life and
property." Rem. Code, SS 943.
234 GOSTINA v. RYLAND.
Opinion Per HOLCOMB, J. 116 Wash.
But in this case the respondent did describe some
annoyance and damage - insignificant, it is true, so
insignificant that respondents did not even claim them
or prove any amount in damages - but simply proved
that the leaves falling from the overhanging branches
of the poplar tree caused them some additional work
in caring for their lawn; and that the needles from the
overhanging branches of the fir tree caused them some
additional work in keeping their premises neat and
clean, and fell upon their roof and caused some stoppage
of gutters; and that sometimes, when the wind
blew in the right direction, the needles blew into the
house and annoyed the occupants. We cannot avoid
holding, therefore, that these are actual, sensible
damages, and not merely nominal, and although
insignificant, "the insignificance of the injury goes to the
extent of recovery and not to the right of action." Henry
v. Shepherd, 52 Miss. 125.
The respondents in this case certainly had one
remedy in their own hands, and under all the authorities
could, without notice, if they had not encouraged
the maintenance thereof, after notice if they had
(which they gave), have clipped the branches that
overhung their premises at the line.
"And although the right so to trim must be conceded,
this does not dispose of the case, as the watching to see
when trimming would he necessary, and the operation
of trimming, are burdens which ought not to be cast
upon a neighbor by the acts of an adjoining owner.
. . . if the trees were innocuous, it might well be
held . . . that the occupier of the land projected
over would have no right of action . . . from
similar grounds of general convenience." Crowhurst
v. Amersham Burial Board, supra.
Since they had the statutory right to bring an action
for abatement, and have shown some actual and
GOSTINA v. RYLAND. 235
July 1921 Opinion Per HOLCOMB, J.
sensible damages, although insignificant, we consider
that we have no option but to sustain it. The remainder
of the trees will doubtless shed their leaves
and needles upon the respondents' premises; but this
they must endure positively without remedy.
The appellants' contention that "One who has slept
upon his rights for a considerable time by acquiescing
in the alleged nuisance will be denied equitable relief
and left to his remedy at law", 29 Cyc. 1231, cannot
apply here. The cases cited by appellants under this
head show delays not of months, but of years. That
principle is applied where one has encouraged the
nuisance and allowed the party to go on and make a heavy
expenditure under the reasonable belief that no objection
would be made; or where the damages were small
and the injury not of a continuous and permanent nature.
2 Wood, Nuisances (3d ed.), SS 785.
The courts look beyond the injury to the consequence
of their action and if fair redress can be had at law
they will not tie up important industries or operations
by injunction unless the equities of the case demand.
Varney v. Pope, 60 Me. 192; Sparhawk v. Union Pass
R. Co., 54 Pa. St. 401.
Here respondents did not encourage an active nuisance
or nuisance by commission, but for a short time
permitted an omission when they gave notice of the
cessation of their permission. No expenditure had
been encouraged, and incurred on the part of appellants.
It cannot be considered that respondents slept
upon their rights for such a considerable time, by
acquiescing in the alleged nuisance, so that they would
be denied equitable relief; nor is this equitable relief,
but legal and statutory relief. Carl v. West Aberdeen
Land & Imp. Co., 13 Wash. 618, 43 Pac. 890. While it
has some appearance of being merely a vexatious suit,
236 GOSTINA v. RYLAND.
Dissenting Opinion Per MACKINTOSH, J. 116 Wash.
appellants admit that the tree-boughs do overhang respondents'
lot to some extent. There is sufficient foundation
in fact to sustain a case, and the authorities are
clearly with respondents.
The judgment of the lower court is affirmed.
PARKER, C.J., and FULLERTON, J., concur.
MACKINTOSH, J. (dissenting) - To have the acts complained
of in this case constitute a nuisance, under
SS 943, Rem. Code, they must be acts (1) injurious to
health; or (2) indecent; or (3) offensive to the senses,
or (4) an obstruction to the free use of the property so
as to essentially interfere with the comfortable
enjoyment of the life and property. It is conceded that the
acts do not come within classifications 1, 2 or 3, but it
is held that such acts amount to an obstruction of the
free use of the property so as to essentially interfere
with its comfortable enjoyment. I cannot agree with
such a result. For the trivial encroachment of the
branches of a tree, and the growth of a few vines under
a fence do not appear to ale to amount to such an
obstruction as to essentially interfere with the
respondents' comfortable enjoyment of their property, and
are not such circumstances as will entitle respondents,
under SS 944, Rem. Code, to institute an action, it being
provided in that section that the action may be brought
by a person whose property is injuriously affected or
whose personal enjoyment is lessened.
I agree with the writer of the opinion in his
characterization of this action as vexatious, and I think
that the statutes on nuisances are hardly susceptible of
the interpretation given them, which has rendered the
action not only vexatious but successful.
I therefore dissent.
BRIDGES, J., concurs with MACKINTOSH, JJ.