While seldom a title issue in and of themselves, boundary trees can present difficult issues for real property attorneys advising property owning clients. Title issues are often in play when litigation arises concerning boundary plantings because a dispute as to the true location of the boundary often lies at the root of the problem. State v. Chamberlain , (COA13-886), filed in the Court of Appeals on February 4, 2014 is an appeal from a District Court misdemeanor conviction. While these cases are not normally the subject of our discussions, the elements of proof in a conviction are often the same as those in a tort action. We shall explore the opinion's treatment of those elements pertinent to the tort of trespass to real property. A good portion of this opinion deals with the subjects of sufficiency of warrants, dismissals for variance, res judicata and double jeopardy. For the purpose of brevity with clarity we will attempt edit out as much of that discussion as we are able and yet present a coherent discussion.
The complainant alleged that the defendant destroyed "THREE LIGUSTRUM TREES" located on his property and the case was dismissed by the district court due to a "fatal variance" in the criminal summons. Following the dismissal a second misdemeanor criminal summons ("Second Summons") was issued alleging probable cause to believe that Defendant had committed two counts of injury to real property. In the Second Summons, the complainant alleged that the defendant "had destroyed, respective to the two counts charged, (1) 'TREES, LAWN[,] AND FLOWERBEDS' and (2) 'THREE LIGUSTRUM SHRUBS' both located on his property." The district court found Defendant not guilty on the first count alleging destruction of trees, lawn, and flowerbeds, but found the defendant guilty on the second count of injury to real property, alleging the destruction of the Ligustrum shrubs. The defendant appealed to Superior Court and was tried before a jury on the second count.
The opinion suggests that the evidence presented at the trial tended to show that: the defendant lives next to the complainant and they had a friendly relationship until the defendant published information communicated to her by the complainant in confidence. At that point, he broke off the friendship. The following year the defendant installed a berm near the property line between their houses. Under the belief that the defendant's landscaping had encroached over his property line, he "repaired the encroachment" and planted a row of Ligustrum shrubs on his side of the line. Then the defendant left him a note asking him to refrain from planting "hedge[s] until [the] dispute [was] resolved regarding the property line." The complainant testified that the property lines in his subdivision "are set out with embedded iron pipes" and that he had his property line surveyed, and that the surveyor identified the corners of his lot based on those pipes prior to planting the Ligustrum shrubs. The opinion notes with particularity that there was no testimony that defendant ever had her property surveyed though she and her husband testified that the shrubs were planted over the property line, on their property. The defendant admitted the in the trial to cutting the shrubs, knowing they belonged to the complainant. The jury found the defendant guilty.
On appeal, Defendant argued the issues noted above. But more relevant to our discussion also contended that he State did not present sufficient evidence to support the charge of injury to real property. The Court of Appeals disagreed and summarized the evidentiary requirement as follows:
The test to be applied in ruling on a defendant's motion to dismiss is whether the State has produced substantial evidence of each and every element of the offense charged, or a lesser included offense, and substantial evidence that the defendant committed the offense. State v. Powell, 299 N.C. 95, 98, 261 S.E. 2d 114, 117 (1980). "If substantial evidence exists supporting [the] defendant's guilt, the jury should be allowed to decide if the defendant is guilty beyond a reasonable doubt." State v. Fowler, 353 N.C. 599, 621, 548 S.E.2d 684, 700 (2001), cert. denied, 535 U.S. 939, 152 L. Ed. 2d 230 (2002). Substantial evidence is defined as "evidence from which a rational finder of fact could find the fact to be proved beyond a reasonable doubt." State v. Davis, 130 N.C. App. 675, 678, 505 S.E.2d 138,141 (1998). When ruling on a motion to dismiss, the trial court must consider all the evidence in the light most favorable to the State. Id. at 679, 505 S.E.2d at 141. "Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
The trial court's decision as to whether there is substantial evidence is a "question of law," and, on appeal, we review it de novo State v. Bumgarner, 147 N.C. App. 409, 412, 556 S.E.2d 324, 327 (2001).
Without delving into the nuances of the analysis of the application of the law to the facts of the case, it is sufficient to observe that in this trial, the jury believed the complainant's testimony that the shrubs were planted on his property and though the evidence produced by the State was contested, it was sufficient to support the finding that the defendant had cut down the shrubs on his property without justification.
The attorney counseling a property owner desiring to cut boundary plantings will prudently advise the client to get a survey and make sure the surveyed line is not reasonably subject to dispute. This in turn may call for a more in depth title examination than was done at the time of purchase. North Carolina appellate decisions dealing with problems of boundary trees are almost nonexistent and offer little guidance to one of the most contentious issues which deals with a landowner's tree whose limbs or roots are hazardous to or are actually damaging a neighbor's property.
Rowe v. McGee, 5 N.C. App. 60, 168 S.E.2d 77 (1969) stands for the doctrine in North Carolina "that where a landowner knows that he has a tree on his property which is in a dangerous condition and which is likely to fall and injure the property of an adjoining landowner, he has a duty to eliminate such danger." The case also makes it clear that the neighbor's contributory negligence may be a defense where they were given permission to cut and by their conduct, led the landowner to believe that the tree had been cut and removed and the dangerous condition eliminated.
Pesaturo v. Robbin Kinne., 161 N.H. 550, 20 A.3d 284 (N.H., 2011) modifies this where it states: "However, a landowner does not have a duty to "consistently and constantly check all trees for nonvisible decay." ... "Rather, the manifestation of [the tree's] decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm." (citations omitted).
Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519 (Va. 2007) while not controlling law in North Carolina, discusses the evolution of 'tree law' and adopts a modern rule that makes problematical trees a continuing trespass where "the conditions existing on the adjoining lands are such that it is reasonable to impose a duty on the owner of a tree to protect a neighbor's land from damage caused by its intruding branches and roots." The analysis in Rowe v. McGee discussed above would suggest that if the issue comes before our appellate courts, they might likely adopt the Virginia rule.