Radical jurisprudence

Mustoe v. Ma, No. 74166-7-I (Wash. Ct. App. Apr. 4, 2016).

 “Rooted” (credit:  Kit / flickr )

“Rooted” (credit: Kit / flickr)

A pair of Douglas firs stood on Jennifer Mustoe’s property, close to the line separating Mustoe’s property from that of her neighbors, Xiaoye Ma and Anthony Jordan. Jordan dug a ditch on his property near the property line, and in the process exposed about half of the Douglas firs’ roots, which had protruded into Ma and Jordan’s property. Jordan then removed these exposed roots with a chainsaw. With the roots removed, the trees (valued at $16,000) now posed a high risk of falling onto Mustoe’s house, so she had them cut down for about $4,000. 

Mustoe sued Ma and Jordan for negligently removing her trees. The Washington Court of Appeals now holds that Ma and Jordan owed no duty to Mustoe to prevent damage to her trees. It sees this case as not much different from a case in which tree branches protrude into a neighbor’s property. In that sort of case, it’s well established, the neighbor may remove the protruding branches. So, too, the neighbor may remove protruding roots. 

It’s certainly true that a neighbor may remove protruding branches. But it’s also true that he may not cut down the tree itself. If a neighbor removes enough protruding roots so that the tree can’t safely stand—which appears to be what happened here—isn’t that more like removing the tree itself? 

At any rate, if Mustoe and Ma had known what their property rights were ahead of time, perhaps they could have bargained about them (Mustoe pays a thousand dollars to Ma in exchange for not digging a ditch, for example). But we aren’t living in a Coasean world.