DECISION AND ORDERINTRODUCTION This is a Small Claims action by Shafi Ahmed and Nusrat Ahmed (“Claimants”) against Allen H. Zoghby (“Defendant”). The Claimants and the Defendant appeared pro se. The Claimants allege roots from a tree purportedly on the property next door, which property is owned by the Defendant and known as 73 Beattie Avenue, Middletown, New York, damaged the pavement and driveway located at the front of the house on the Claimants’ property, known as 75 Beattie Avenue, Middletown, New York. The Claimants also allege the tree’s roots are slowly moving under the foundation of the Claimants’ house and further claim the branches from the tree on the Defendant’s property had to be cut and trimmed by the Claimants at their cost. The Claimants initially sued the Defendant for $3,800.00.The Claimants submitted their Application to File Small Claims on October 16, 2018; the Court mailed notices of this action on October 17, 2018 to the Defendant setting December 7, 2018 as the date for the trial. The parties appeared on December 7, 2018 and agreed, after meeting with a mediator, to adjourn this action until January 18, 2019 so the Claimants could produce a survey showing where the subject tree is located to determine who owns the tree, and for a trial if the parties could not settle. On January 18, 2019, the Claimants appeared in court but the Defendant did not. The Court then conducted an inquest of the Claimants. After the inquest, the Claimants moved to amend their claim to conform with the proof, and the Court granted a default judgment to the Claimants in the amount of $4,675.00 plus costs.The Defendant, on February 13, 2019, filed with the court an application for an Order to Show Cause to vacate the judgment and restore the case to the calendar. The Defendant submitted proof that he was unable to appear in court on January 18, 2019 due to his undergoing chemotherapy for a brain tumor. He also asserted a defense based on the need to have a survey to show on whose property the tree at issue is located. The Court signed the Order to Show Cause and set a return date of March 1, 2019. The Claimants and the Defendant appeared on March 1, 2019, at which time the Court granted the Order to Show Cause, vacated the judgment, and restored the case to the calendar. The parties again attempted mediation, which was unsuccessful, and the Court conducted a trial that day and reserved decision after the trial.At the trial, the Claimant, Shafi Ahmed (“Ahmed”), and the Defendant (“Zoghby”) both testified under oath, and they both testified credibly. Both Ahmed and Zoghby submitted documentary evidence for the Court’s consideration.FINDINGS OF FACTThe credible evidence at the trial showed the following:A very large tree (“the tree”) straddles the property line separating 75 Beattie Avenue from 73 Beattie Avenue. Ahmed, an owner of 75 Beattie Avenue, testified roots from the tree have extended under and pushed up through a portion of the driveway at the Claimants’ property. He also testified branches from the tree hang over the Claimants’ property and have caused the deposit of leaves and other debris on the roof of the house on the Claimants’ property.Ahmed produced documentation showing the Claimants borrowed money from the City of Middletown Community Development Office in 2013 for various home improvements, including $1,000.00 paid in August 2013 to a contractor to cut the tree’s branches overhanging the Claimants’ house (Claimants’ Exhibit 5, in evidence).1 Ahmed also produced a letter dated August 14, 2018 from the Claimants’ insurance company (Claimants’ Exhibit 6, in evidence) after an insurance company representative inspected the Claimants’ property. The letter contained the following recommendation (which, according to the letter, had “a direct influence upon [the company's] decision to continue coverage”): “Driveway apron: Repair the uneven pavement of the driveway apron along Beattie Avenue where there are uneven areas of asphalt near the road. Ensure that this area is returned to a smooth and level surface to prevent trip and fall hazards.” Ahmed presented pictures of both the roof of the house and the driveway area showing leaves on the roof (but no apparent damage) and cracks and upheavals in the driveway which appear to be the result of roots coming from the tree; the pictures were taken at various times of the year (Claimants’ Exhibits 2 and 3, in evidence). The pictures also show the tree appeared to straddle the property line between the two properties.Apparently as a result of the insurance company’s requirements, the Claimants, in October 2018, obtained estimates from two companies to repave the driveway, including cutting off the roots of the tree (collectively, Claimants’ Exhibit 4, in evidence). The Claimants eventually hired a third contractor, Max Landscape LLC, at a cost of $2,950.00 to do the work. The work included removing the tree’s roots, demolishing and disposing the existing driveway, grading and compacting, and installing a new paved driveway. The Claimants paid Max Landscape $2,950.00 and produced a paid receipt showing the work was done in February 2019 (Claimants’ Exhibit 7, in evidence).Zoghby testified that he caused the entire tree (including branches hanging over both his property and the Claimants’ property) to be trimmed approximately eight to ten years ago. He did not know if the tree was on his property or the Claimants’ property but believed it straddled the property line between the two properties. He further testified that roots from the tree not only were growing under the Claimants’ driveway but under his as well, causing cracks in both driveways. Zoghby produced pictures (Defendant’s Exhibit A, in evidence) showing the tree and the driveways to both properties. The pictures, like the pictures offered by Ahmed, show the tree on a grassy strip between both driveways and show cracks in the driveways.2The Claimants purchased their property (75 Beattie Avenue) in December 2004; Zoghby purchased his property (73 Beattie Avenue) in October 2002 and sold it to Alvaro Gonzalez in August 2018.3 Ahmed produced a copy of a survey by Ernest Johnson, P.L.S. The survey is undated4 but shows the line between Zoghby’s property and the Claimants’ property going through what appears to be a symbol for a bush or tree at the front (Beattie Avenue side) of both properties, but the survey does not identify what that symbol means. The survey also shows more of the symbol appears to be on Zoghby’s property, but there is nothing indicating whether the symbol (if it, indeed, represents the tree) is of the trunk of the tree or the branches of the tree.5 Ahmed, in his testimony, indicated he believes there is a survey mark or pole on the property line indicating approximately ten percent of the tree itself is on the Claimants’ property and agreed the tree is on both properties, but neither party offered anything in evidence showing precisely where the tree was located with respect to each property.The testimony and evidence at the trial ultimately shows the tree straddles the common line separating the Claimants’ property from Zoghby’s property.DISCUSSIONThere are several issues raised by the testimony and evidence at the trial: ownership of the tree; the Claimants’ assertion that Zoghby must pay for the removal of branches in 2013; and the Claimants’ assertion that Zoghby must pay for the removal of roots and the driveway work on the Claimants’ property. Each of these issues are addressed below.1. Ownership of the TreeIt is the long-standing rule in New York that a “tree is wholly the property of him upon whose land the trunk stands” (Hoffman v. Armstrong, 48 NY 201, 203 [1872]; accord Hileman-Rizzo v. Krysty, 10 Misc 3d 135[A] [App Term, 2d Dept, 9th & 10th Jud Dists 2005]; Colombe v. City of Niagara Falls, 162 Misc 594, 596 [Sup Ct, Niagara County 1937]; Oshea v. Shanzer, 40 Misc 3d 1224[A] [Suffolk Dist Ct 2013]). If a tree, however, straddles the line between two properties, the owners of each property own the tree as tenants in common (Dubois v. Beaver, 25 NY 123, 126-127 [1862]; Hileman-Rizzo at 135[A]; Oshea at 1224[A]; 1 NY Jur 2d, Adjoining Landowners §64 [Note: online version] [February 2019 update]). Even if a tree were originally planted on one property and, over the years, grew “over the property line so that it stood on the land of both parties[, that fact] would render the parties tenants in common in the tree” (Hileman-Rizzo at 135[A]).The testimony of both Ahmed and Zoghby and the evidence at trial show that the tree (and not just the roots and branches but the trunk as well) is on both properties and straddles the line between both properties. There was no testimony or evidence from either party establishing precisely where the tree was located with respect to each property; Ahmed and Zoghby admitted the tree appeared to be on both properties.6 As a result, under the Dubois rule and as reiterated in a number of New York cases thereafter, the Claimants and Zoghby were owners of the tree as tenants in common during the time Zoghby owned his property. Because Zoghby sold his property to Alvaro Gonzalez in August 2018, the Claimants and Gonzalez (who is not a party to this action) now own the tree as tenants in common.2. The Claimants’ Removal of Branches From the Tree in 2013In August 2013, the Claimants paid $1,000.00 to a contractor to cut the tree’s branches overhanging the Claimants’ house. Ahmed also produced pictures showing leaves on the roof of the Claimants’ house, ostensibly from the tree. He claimed Zoghby owed the Claimants $1,000.00 for the cost of cutting the tree’s branches to prevent leaves from falling and accumulating on the roof. The Claimants apparently sought the $1,000.00 under a private nuisance theory.There are three reasons the Claimants’ claim for reimbursement of the $1,000.00 must fail. First, the Claimants’ assertion (based on nuisance) is time barred by New York Civil Practice Law and Rules §214(4). Under Section 214(4), actions to recover damages for injury to property must be commenced within three years of the property damage (see McNaught v. Mascia, 11 Misc. 3d 143[A] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]). Since the Claimants paid a contractor to remove the offending branches in 2013, more than three years elapsed after the purported damage to the roof from the falling and accumulating leaves and before the Claimants started this action in 2018.Second, overhanging branches, accumulated fallen leaves, branches, and or buds, or cosmetic damage to a garage, or branches and leaves blocking the sun, without proof of actual injury to a person or that person’s property (which injury is known as “sensible damage”), is not enough to sustain a claim of private nuisance (Turner v. Coppola, 102 Misc. 2d 1043, 1044-1045 [Sup Ct, Nassau County 1980], affd 78 AD2d 781 [2d Dept 1980]; accord Iny v. Collom, 13 Misc. 3d 75, 84 [App Term, 2d Dept, 9th & 10th Jud Dists 2006, Lippman, J., dissenting]). As the Turner trial court noted, “[r]ecovery for damages from overhanging branches depends upon the presence of actual injury to plaintiff or plaintiff’s property. Upon the facts stated and the allegations made in the complaint, there is insufficient basis for an action as a private nuisance because real, sensible damage has not been shown to result from the overhanging tree branches or leaves [citation omitted]” (id. at 1045). The remedy in such case, according to the Turner trial court, is self-help: “ Summary abatement by self-help under these circumstances is a sufficient remedy [citation omitted]. Just as it has been established that a property owner may resort to self-help in the first instance to remove tree roots adversely affecting his land [citations omitted], so it has been held with the removal of overhanging tree branches” (id. at 1046). The Claimants, in essence, resorted to self-help in 2013 by hiring a contractor to remove the branches and leaves, and that self-help was appropriate in this case because of the lack of “sensible damage” from the falling and accumulating leaves.Third, even if the branches and leaves caused “sensible damage,” the Claimants would not have a right to require Zoghby to reimburse them $1,000.00 because the Claimants owned the tree as tenants in common with Zoghby. The Claimants’ remedy, as a co-owner of the tree as tenants in common with Zoghby, would be self-help by trimming the branches, so long as that action does not “injure the main trunk of the tree.” As the trial court in Hileman-Rizzo noted (at 135[A]), “each party in such a case [where the parties own the tree as tenants in common] is entitled to conduct ordinary clipping or pruning, so long as this does not injure the main trunk of the tree” (citation omitted). See also Dubois at 127-128; Oshea at 1224(A); 1 NY Jur 2d, Adjoining Landowners §64. The actions by the Claimants in hiring a contractor at a cost of $1,000.00 to trim the tree’s branches overhanging the Claimants’ property are self-help actions as co-owners of the tree and are not subject to reimbursement by Zoghby.3. Defendant’s Liability for the Costs to Remove Roots from the Claimants’ Property and to Repave the Claimants’ DrivewayThere are few, if any, reported New York cases involving damage claims from tree roots where the tree straddles a common property line. The cases that address damage from roots of a tree generally involve a tree located solely on a neighbor’s property; those cases generally acknowledge and allow self-help, in the first instance, to remove those roots that have emerged from such a tree. See e.g. 1212 Ocean Avenue Housing Development Corp. v. Brunatti, 50 AD3d 1110, 1112 (2d Dept 2008); In re Black, 2002 NY Slip Op 4049(U) *3 (Sup Ct, Suffolk County 2002); Ferrara v. Metz, 49 Misc. 2d 531 (Sup Ct, Suffolk County 1966); Colombe at 596; Loggia v. Grobe, 128 Misc. 2d 973, 974-975 (Suffolk Dist Ct 2013); but see Ferrara at 531 (depending on the case, self-help efforts may be futile); Norwood v. City of New York, 95 Misc. 2d 55, 57, 58 (Civ Ct, Queens County 1978 (sewer line damage from roots of tree planted by the City; self-help not required “where the sewer line is properly constructed [because] the municipality, rather than the landowner, should bear the cost of repairing the sewer line when it plants a tree, having the propensity to dig into sewer lines, over that sewer line”); cf. Iny v. Collom, 13 Misc. 3d 75, 76 (App Term, 2d Dept, 9th & 10th Jud Dists 2006) (roots from a tree on the defendant’s property damaged the garage on the plaintiff’s property; the defendant was ordered to show proof within 60 days the tree was removed; otherwise, award of $2,100.00 affirmed based on the defendant’s liability and the plaintiff’s damages).The above cases all involve similar facts: the plaintiffs in those cases alleged their properties were damaged by roots from trees solely on the defendants’ properties. Again, that is not the case here. In this case, any damage to the Claimants’ driveway was caused by roots emanating from the tree, and the Claimants own the tree as tenants in common with Zoghby (and, now, Zoghby’s successor in interest). The Claimants weren’t the only ones suffering damage caused by roots from the tree; Zoghby, in testimony and through evidence, proved roots from the tree also damaged the driveway on his property. In essence, then, if the Claimants were to be awarded damages from Zoghby due to the tree’s roots, Zoghby also could be awarded damages from the Claimants for harm caused by the roots to the driveway on Zoghby’s property.After considering the established facts in this action, and extending the ruling of the Appellate Term in Hileman-Rizzo to an action for damages caused by roots from a tree owned by neighbors as tenants in common, it would appear the logical and common sense rule to apply is this: if damage is caused by roots growing from a tree straddling a common property line between two properties, the tree, as noted above, is owned as tenants in common by both property owners. In such a case, each property owner may not recover from the other property owner but is limited to self-help remedies to cure any such damage on that owner’s property caused by the tree’s roots (so long as that action does not “injure the main trunk of the tree” [Hileman-Rizzo at 135(A)]).The Court, in this small claims action, must “do substantial justice between the parties” (Uniform City Court Act §1804). Under the circumstances of this action, and in view of the fact that the parties own the tree as tenants in common, it would defy substantial justice to hold the Defendant liable. The Defendant thus owes nothing to the Claimants.DECISIONAfter hearing the testimony at the trial, giving weight to the credible testimony of theClaimant, Ahmed, and the Defendant, Zoghby, and reviewing all documentary evidence produced by the parties at the trial, it isORDERED, that the Claimants’ action against the Defendant is dismissed, without costs, and it is furtherORDERED, that judgment shall issue for the Defendant dismissing this action in its entirety.The foregoing constitutes the Decision and Order of this Court.Dated: April 8, 2019Middletown, New York
