Tree’s owner loses right to overhanging portions – Starbulletin


Stop the presses!

That fruit overhanging into your property does belong to you, at least in Hawaii.

So says the judge who wrote the opinion — Whitesell v. Houlton — that has become nationally known as the "Hawaii Rule" regarding the rights of property owners versus a neighbor’s tree.

James Burns, former chief judge of the Hawaii Intermediate Court of Appeals, was responding to our column in which we cited neighbor law expert/author Cora Jordan, who said there was no law in the United States that addressed ownership of fruit overhanging into a neighbor’s yard.

But in "Neighbor Law: Fences, Trees, Boundaries & Noise," she laid out the argument that the fruit belongs to the tree owner, no matter that a neighbor could hack away at any part of the tree that encroached onto his property.

Burns, currently an adjunct professor at the University of Hawaii William S. Richardson School of Law, argues otherwise, pointing to this statement in the opinion: "However, we also hold that a landowner may always, at his own expense, cut away only to his property line above or below the surface of the ground any part of the adjoining owner’s trees or other plant life."

In other words, "any part of a plant or a tree that is within your property line is yours, fruit included," Burns told us. "Although the facts in Whitesell did not involve ‘flowers or fruit,’ the opinion expressly speaks about them."

He emphasized that he was not speaking for the court.

"Now I’m just a lawyer interpreting the opinion," he said. "My robe is off."

He said people can interpret it any way they want but that "it’s impossible to read that opinion and not conclude that fruit belongs to the person owning the land where the fruit is hanging. … Consider the property line going straight up. That’s your property. If the branch hangs over onto your property, that part of the branch is yours. Nobody can get to it without invading your property."

Burns explained that ownership of fruits was not specifically addressed because the Whitesell case involved a banyan tree.

But he pointed to another part of the opinion, which he said also "clearly indicates" that fruits are part of the equation: "The opinion says that if you’ve got an overhanging branch which merely casts shade or drops leaves, flowers or fruit, that’s not a nuisance," and you can’t make the tree owner "do anything."

Thus, "if you’re not able to tell your neighbor to cut that tree if that tree is dropping leaves, flowers or mangoes on your house, doesn’t it tell you that that’s your fruit?" he asked rhetorically.

So far, the issue remains part of a judicial ruling and not a law. The state Legislature could enact a law, but in nearly 30 years it has not touched the appellate court’s ruling.

The ruling apparently never went before the Hawaii Supreme Court, so the owner of a tree could challenge it before the high court.

Burns is not aware of any other jurisdiction addressing the issue of overhanging fruit. However, other states have since followed the Hawaii Rule, including Illinois, Indiana, Kansas, New Mexico, Ohio and Tennessee.

"I think it’s a good rule" that still applies after all these years, Burns said.

Tree’s owner loses right to overhanging portions – Kokua Line –

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