MGL c. 49 § 21 A fence or other structure in the nature of a fence which unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property shall be deemed a private nuisance.
MGL c.87, § 1 Public shade trees; definition. All trees within the public way or in the boundaries thereof…shall be public shade trees… [If] it is doubtful whether the tree is within the highway, it shall be taken to be within the highway and to be public property until the contrary is shown.
MGL c.87, § 3 Cutting of public shade trees. Except as provided by section five, public shade trees shall not be cut, trimmed or removed, in whole or in part, by any person other than the tree warden or his deputy, even if he be the owner of the fee in the land on which such tree is situated, except upon a permit in writing from said tree warden…
MGL c.87, § 11 Injury to trees of another person
Provides for "imprisonment for not more than six months or... a fine of not more than five hundred dollars."
MGL c.242, § 7 Willful trespass to trees, etc.; damages
Violators are "liable to the owner in tort for three times the amount of the damages assessed therefor."
Other authorities (common law)
Restatement of the law, Second, Torts 2d, §197: Private necessity. “One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to…the actor, or his land or chattels…” (Comment: “The privilege …exists only…in an emergency…Furthermore, the privilege must be exercised at a reasonable time and in a reasonable manner.”) Available for no charge from our Document Delivery Service.
No trespass order, Leicester Police Department.
Selected case law
Bassin v. Fairley, 22 LCR 251 (Land Court, 2014)
Where a healthy tree straddles the property line, the property owners "each hold title to a portion of [the tree], and thus neither can take any action against their portion of [the tree] that would injure [the tree] as a whole." Furthermore, (in accordance with the Restatement of the Law, Torts 2d) a person can only enter property to cut the tree of another if it is an emergency situation, or if they have permission.
Evans v. Mayer Tree Service, Inc., 89 Mass. App. Ct. 137 (2016)
A tree company cut down trees at the specific direction of a Federal official who mistakenly believed that the plaintiff had given written permission to have the trees destroyed. Appeals court vacated the dismissal and remanded to Superior Court. "So long as the act of cutting was intentional and the act was without license, liability exists -- albeit for single damages only -- even where the person cutting the trees had "good reason to believe" he was "lawfully authorized" to do so."
Glavin v. Eckman, 71 Mass. App. Ct. 313 (2008)
Martha's Vineyard property owners and their tree contractor cut down ten mature trees on a neighbor's property to improve their own view of the ocean. The court upheld a jury award granting the wronged property owner the $30,000 replacement cost of the trees, rather than damages measured by the worth of the timber or diminution of the property's value.
Jones v. Town of Great Barrington, 273 Mass. 483 (1930)
Town was liable for injuries caused by a falling tree where the town, "although notified of its condition, had permitted to stand within the limits of the way for so long a time and in so decayed and dangerous a condition that it constituted a nuisance: ... that the tree was within the exclusive control of the tree warden ... and that his power to remove the tree was limited and prescribed by the terms of G. L. c. 87, did not relieve the defendant of liability for the nuisance."
Kurtigan v. City of Worcester, 348 Mass. 284 (1965)
City was held liable for damages caused by limbs of dead tree falling from property which city acquired for nonpayment of taxes. "Public policy in a civilized community requires that there be someone to be held responsible for a private nuisance on each piece of real estate, and, particularly in an urban area, that there be no oases of nonliability where a private nuisance may be maintained with impunity."
Levine v. Black, 312 Mass. 242 (1942)
Court refused to grant an injunction barring one neighbor from cutting down a tree sitting on the property line, where evidence showed that previous work on the tree had reduced it to "a trunk and two limbs."
Michalson v. Nutting, 275 Mass. 232 (1931)
The owner of a tree is not responsible for the damage its roots cause to neighboring property, but the neighbor's "right to cut off the intruding boughs and roots is well recognized."
Ponte v. DaSilva, 388 Mass. 1008 (1983). "The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor's property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance."
Ritter v. Bergmann, 72 Mass. App. Ct. 296 (2008)
Clarifies that the "Glavin case does not require that there be a personal reason to support utilizing restoration cost as a measure of damages...Here, the damage to the Ritters that resulted from the cutting down of trees on the lot adjacent to their home was not only the potential loss in the value of the land that they hoped to sell, but the loss of their own privacy -- regardless of whether lot 11 was sold or retained."
Shiel v. Rowell, 480 Mass. 106 (2018)
Upholds the "Massachusetts rule" that "an individual whose property is damaged by a neighbor's healthy tree has no cause of action against a landowner of the property upon which the tree lies." Property owners who are disturbed by their neighbor's trees are "not without recourse," though. They remain free to remove any part of the tree that crosses the property line.
Wellesley Conservation Council v. Pereira, Civil No. 17-863 (Norfolk Super. Ct.) (2018), 35 Mass. Law Reporter 113 (2018)
A conservation council, as grantee of the conservation restriction on defendants' property, may not recover monetary damages from defendants because defendants cut trees on their property in violation of the conservation restriction.
Handbook on fence viewers and laws on fences in the Commonwealth of Massachusetts, by Larson and Cramer, 2004.
"This handbook is intended to serve as an informal guide to the laws that pertain to Fence Viewers and fencing in general in the Commonwealth of Massachusetts."
If a tree falls in a storm, who pays?, Lawley Insurance
Generally speaking, if your property is damaged, you are responsible for the damages. It doesn’t matter if the tree or limb came from your property, your neighbor’s property or even municipal property.
Massachusetts laws on property disputes between neighbors , Nolo.com
"A breakdown of Massachusetts laws on neighbor disputes involving trees, fences, and the right to farm."
Massachusetts fallen tree law, Mass. Real Estate Blog.
Explains who is responsible for a tree that falls on a neighbor's yard. "legally speaking, your neighbor is not liable for a healthy tree falling down during a major storm event....On the other hand, if the neighbor’s tree was diseased or decayed, was known to be at risk of falling and the neighbor ignored it, there could be negligence and liability. Either way, if you have homeowner’s insurance, the insurance companies will sort out fault and blame."
Neighbor disputes over water damage , Nolo.com
Not specific to Massachusetts, this site outlines the general standards of responsibility for water issues.
Neighbor law: fences, trees, boundaries, & noise , Nolo, 2020.
Includes information on spite fences, boundary trees, obstruction of views, invading branches and more. Requires free library card for access
When your neighbor's tree blots out the sun, can you force them to take it down? Not in Massachusetts, National Law Review, February 8, 2019.
Explains the holding in Shiel v. Rowell: If a tree is healthy, a property owner does not have to cut it down or trim it to please a neighbor. If branches or roots cross a property line, the neighbors can cut them themselves.
|Last updated:||September 23, 2020|