OShea v Shanzer
Annotate this CaseDecided on August 8, 2013
District Court of Suffolk County, Third District
Betsy OShea, Plaintiff
Michael Shanzer, Defendant
HUSC 161-13
C. Stephen Hackeling, J.
The undisputed facts adduced at trial are that the above captioned parties are neighbors with adjoining residential properties located at 105 and 107 Soundview Road, Huntington, New York. The plaintiff has owned her home since 1984 and the defendants moved in sometime thereafter. The parties have not harmoniously co-existed over the last several years and recent disputes precipitated the defendants' constructing a fence three inches from their property boundary line with the plaintiff. During the fence construction the defendant cut down two mature sassafras trees which appear to have been initially planted upon the defendants' property. Over the years the circumference of the sassafras trunks have grown on both sides of the property line. Approximate five (5) foot stumps with the fence running through them have been left.
The parties assert that the disputed issues of fact are whether the defendants' actions in constructing the fence killed the plaintiff's mature maple tree located several feet onto the plaintiff's property and whether the defendants' Town of Huntington tree removal permit, dated October 3, 2011, included the subject sassafras trees. The Court need not decide these factual issues as the record presented contains no evidence that the defendants either cut the plaintiff's maple tree roots or applied poison to same. The issue of having a Town permit to remove the trees is irrelevant as said local law (Town of Huntington Code Sec. 186-8) is quasi criminal in nature and does not supercede the parties common law rights and responsibility; nor the statutory provisions of New York Real Property Law Sec. 861.
The Law
Ordinarily a tree trunk is the sole property of the one on whose land the trunk is situated. See generally, Hoffman v. Armstrong, 3 Sickels 201 (NY 1872); Marino v. Lorch, 2 Misc 3d 56 (App. Term 9th & 10th Jud. Dists., 2nd Dept. 2003). However, where the trunk of the tree, although originally planted on one side of a boundary, has grown over onto both properties, the tree becomes property held as tenants-in -common. Hileman-Rizzo v. Krysty, 10 Misc 3d 135(A) [*2](App. Term 9th & 10th Dist., 2nd Dept. 2005). If one tenant -in-common destroys or removes the common tree property, he is liable under the common law in "trespass quam clausum fregit" for the injury. Dubois et al., Executors v. Beaver, 25 NY 123 (NY 1862). The New York State legislature created a treble damage statutory liability for persons (including adjoining property owners)
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who cut down trees on another's property. See, New York Real Property Law Sec. 861 and Krieg v. Peters, 46 AD3d 1190 (N.Y.A.D. 3rd Dept., 2007). However, proper statutory construction
establishes that Sec. 861's provisions have not changed the common law concerning "tenant-in- common trees" and is inapplicable in this instance. See New York Statutes Sec. 301, Bertles v. Nunan, 92 N.Y. 152 (NY 1883).
The measure of the plaintiff's damages for her interest in the two destroyed sassafras trees is one half the value of the cut trees. Hollenbeck v. Genung, 198 AD2d 677 (N.Y.A.D. 3rd Dept. 1993). The Court adopts the $1,875.00 replacement cost described in the plaintiff's "Conserv-A-Tree" estimate (Exhibit 5) and adds the $400.00 stump removal fee in the "Tuthill" estimate (Exhibit 5) to determine the replacement costs of the sassafras trees to be $2,275.00. One half of said sum is $1,137.50 and directs the Clerk of the court to enter judgment for said sum plus costs and interest from the complaint date.
The defendants' counterclaim is dismissed as unfounded in the trial record.
Dated:August 8, 2013Hon. C. Stephen Hackeing
J.D.C.
Decision to be published on lineX yes____no.
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