Martin v. Artis

November 7 2012
DA 12-0120
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 249WILBUR V. MARTIN,
Plaintiff and Appellant,
v.
KEITH ARTIS and GLORIA ARTIS,
Defendants and Appellees.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 10-1078
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Terry A. Wallace; Attorney at Law; Missoula, Montana
For Appellees:
Dwight J. Schulte; Schulte Law Firm, P.C.; Missoula, Montana
Submitted on Briefs: August 1, 2012
Decided: November 7, 2012
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Wilbur Martin (Martin) appeals from the order of the Fourth Judicial District
Court dismissing his complaint asserting nuisance and trespass against Keith and Gloria
Artis (Artises), for failing to state a claim upon which relief can be granted. We affirm in
part, reverse in part, and remand for further proceedings. We address the following issue:
¶2 Did the District Court err by dismissing the complaint for failing to state a claim
upon which relief could be granted?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Martin filed a complaint and demand for jury trial against Artises in August 2010.
These facts are taken from the complaint. Martin resides in the South Hills subdivision in
Missoula. Artises’ property lies immediately below and abuts Martin’s property, and a
boundary fence separates the properties. The complaint states:
On [Artises’] property is situated a tree, which has grown over the last
several years so that it blocks a substantial portion of [Martin’s] view of the
city, valley and mountains. Last [I]ndependence [D]ay, for example,
[Martin] and his guest could see virtually none of the South Gate Mall
fireworks display solely because of this tree blocking the view[.]
¶4 Martin alleged that the tree’s obstruction of his views was offensive to his senses,
was an infringement upon the free use of his property, interfered with his comfortable
enjoyment of his property, and diminished the aesthetic and monetary value of his
property. He asserted that the tree was, and that Artises intended it to be, a nuisance.
¶5 Martin also alleged that “[r]oots from the tree are encroaching onto [Martin’s]
property and are starting to buckle the boundary fence” and that “the tree itself
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encroaches onto [Martin’s] property over the common boundary fence.” Martin asserted
that the tree’s encroachment upon his property constituted trespass. Acknowledging that
Artises had “recently cut a few branches from the tree” after he contacted them, Martin
nonetheless asserted that Artises “know their tree is growing over the fence onto
[Martin’s] property and is buckling his fence but refuse to do anything to stop it; that
such trespass is continuing.”
¶6 Finally, alleging that Artises had notice and knowledge of the alleged facts, Martin
asserted that Artises are guilty of actual malice and that he is entitled to an award of
punitive damages.
¶7 Artises filed a motion to dismiss the complaint, arguing that Martin had failed to
state a claim upon which relief can be granted because a naturally growing tree is not a
nuisance or trespass as a matter of law. The District Court granted the motion and
dismissed the complaint. Martin appeals.
STANDARD OF REVIEW
¶8 We review de novo a district court’s decision on a motion to dismiss. Rooney v.
City of Cut Bank, 2012 MT 149, ¶ 13, 365 Mont. 375, 286 P.3d 241 (citation omitted).
We “construe the complaint in a light most favorable to the plaintiff, deeming all factual
allegations to be true.” Fellows v. Office of Water Comm’r, 2012 MT 169, ¶ 11, 365
Mont. 540, 258 P.3d 448. “This Court will affirm the dismissal only if it finds that the
plaintiff is not entitled to relief under any set of facts that could be proven in support of
the claims.” Fellows, ¶ 11 (citations omitted).
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DISCUSSION
¶9 Did the District Court err by dismissing the complaint for failing to state a claim
upon which relief could be granted?
¶10 A. Nuisance claim for obstruction of view by a naturally growing tree.
¶11 The statutory definition of nuisance provides that “[a]nything which is injurious to
health, indecent or offensive to the senses, or an obstruction to the free use of property, so
as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.”
Section 27-30-101(1), MCA (2009). Noting the absence of express authority creating a
right in a landowner to an unobstructed view, and citing to California cases holding that
the law is reluctant to imply such a right, the District Court concluded that Martin had no
legally enforceable right to demand that Artises reduce the size of their tree, and
dismissed his nuisance claim. Martin argues for a contrary conclusion, citing the
definition of nuisance within § 27-30-101(1), MCA, and our decision in Tarlton v.
Kaufman, 2008 MT 462, 348 Mont. 178, 199 P.3d 263.
¶12 In Tarlton, a dispute between Tarltons and Kaufmans, adjoining landowners, led
Kaufmans to construct a chain link fence that “stood approximately 20 feet above a
newly constructed 6-foot high berm, measured 270 feet in length, and was covered in two
layers of dark material.” Tarlton, ¶ 9. Tarlton brought a nuisance claim, alleging “the
fence destroyed the aesthetic value of their property, that it reduced the value of their
property, that it destroyed their view, and that it was an eyesore.” Tarlton, ¶ 10. In
addition to instructing the jury that Tarltons had to prove that the Kaufmans, by building
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the fence, created a condition that was either injurious to health, indecent or offensive to
the senses, or an obstruction to the free use of property, which caused an unreasonable
interference with Tarlton’s enjoyment of their property, the trial court further instructed
the jury that “[g]enerally, a structure or condition cannot constitute a nuisance merely
because it is unsightly or because it obstructs a party’s view.” Tarlton, ¶ 15. The jury
found that Kaufman’s fence was not a nuisance. Tarlton, ¶ 16. We reversed, concluding
that the additional jury instruction to the effect that, “[g]enerally, a structure or condition
cannot constitute a nuisance merely because it is considered unsightly or obstructs a
party’s view,” improperly limited the statutory definition of nuisance and was misleading
and confusing to the jury. Tarlton, ¶ 43.
¶13 In deciding Tarlton, we rejected Kaufman’s invitation to apply the holdings of the
courts of California, the source of Montana’s statute, even though we had previously
looked to California for guidance in interpreting the statute, see Barnes v. City of
Thompson Falls, 1999 MT 77, ¶ 19, 294 Mont. 76, 979 P.2d 1275, reasoning that “this
discussion does not require an investigation of California nuisance law since our analysis
considers only the question of whether the District Court fully and fairly instructed the
jury on Montana’s nuisance law.” Tarlton, ¶ 27. California courts have held that, “[a]s a
general rule, a landowner has no natural right to air, light or an unobstructed view and the
law is reluctant to imply such a right.” Pacifica Homeowners’ Ass’n v. Wesley Palms
Ret. Community, 178 Cal. App. 3d 1147, 1152, 224 Cal. Rptr. 380, 382 (1986) (citing
Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116, 127, 99 Cal. Rptr. 350,
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357 (1971)). Kaufman had also offered earlier Montana cases rejecting nuisance claims
under the statute, but we factually distinguished those cases, explaining that they did not
“address the question of whether a fence’s (or similar structure’s) unsightliness or view
obstruction could or could not be factors of a nuisance claim in Montana.” Tarlton, ¶ 25.
¶14 Tarlton’s analysis, in which we distinguished earlier Montana and California
nuisance holdings, demonstrates that, while it is possible under § 27-30-101(1), MCA, for
“anything” to constitute a nuisance, a nuisance claim must nonetheless plead a factual
foundation that satisfies governing legal standards. “A nuisance action may be based
upon conduct of a defendant that is either intentional, negligent, reckless, or
ultrahazardous.” Barnes, ¶ 16. We have explained that a nuisance may either be a
nuisance per se or a nuisance per accidens. Barnes, ¶ 17. A nuisance per se or at law is
“an inherently injurious act, occupation, or structure that is a nuisance at all times and
under any circumstances, without regard to location or surroundings.” Barnes, ¶ 17. A
nuisance per accidens or in fact “is one which becomes a nuisance by virtue of
circumstances and surroundings.” Barnes, ¶ 17. Likewise, a nuisance may also be
classified as either absolute or qualified. Barnes, ¶ 18. An absolute nuisance is “a
nuisance, the substance . . . of which is not negligence, which obviously exposes another
to probable injury.” Barnes, ¶ 18 (internal quotations omitted). A qualified nuisance is a
“nuisance dependent on negligence that consists of anything lawfully but so negligently
or carelessly done or permitted as to create a potential and unreasonable risk of harm,
which, in due course, results in injury to another.” Barnes, ¶ 18 (citations omitted).
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¶15 Although we concluded that the jury instruction in Tarlton improperly limited
§ 27-30-101, MCA, that case involved a 270-foot by 20-foot man-made chain link fence
covered in dark material and placed on a newly constructed 6-foot high berm adjacent to
the neighboring property. Tarlton, ¶ 9. We did not hold in Tarlton that a nuisance claim
would lie for any obstruction of view whatsoever. Here, the complaint alleges that a tree,
in the course of its natural growth, has risen tall enough to obstruct Martin’s view.
Although Martin’s complaint broadly claims that Artises’ tree has reduced the aesthetic
and monetary value of his property, interfered with the comfortable enjoyment of his
property, and offended his senses, the entire factual basis of the claim is that a tree has
obstructed his view because of natural growth.
¶16 There is extensive jurisprudence in other jurisdictions and commentary on the
issue of whether trees and vegetation may constitute a nuisance, and various rules have
been adopted to define the conditions for which a claim may be made. See, i.e., F.S.
Tinio, Rights and Liabilities of Adjoining Landowners as to Trees, Shrubbery, or Similar
Plants Growing on Boundary Line, 26 A.L.R.3d 1372 (1969); Restatement (Second) of
Torts § 840 (1979); Ken Cowden Chevrolet, Inc. v. Corts, 316 N.W.2d 259 (Mich. Ct.
App. 1982); Fancher v. Fagella, 650 S.E.2d 519 (Va. 2007); Whitesell v. Houlton, 632
P.2d 1077 (Haw. Ct. App. 1981); Lane v. W.J. Curry & Sons, 92 S.W.3d 355 (Tenn.
2002). We decline to address or adopt any specific rules in this present case because we
conclude that the nuisance claim plead in Martin’s complaint does not satisfy the
standards governing nuisance under current Montana law. The assertion that Artises’
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naturally growing tree has obstructed Martin’s view does not constitute, as a matter of
law, “conduct of a defendant that is either intentional, negligent, reckless, or
ultrahazardous,” “an inherently injurious act,” or a condition which “obviously exposes
another to probable injury.” Barnes, ¶¶ 16-18. We thus conclude that the District Court
properly granted the Artises’ motion to dismiss Martin’s nuisance claim.
¶17 B. Trespass claim for encroaching tree trunk and roots.
¶18 “The entry of another person or thing obstructs a property owner’s exclusive
possession. A party need not establish actual harm or damages in a traditional trespass
action.” Tally Bissell Neighbors, Inc. v. Eyrie Shotgun Ranch, LLC, 2010 MT 63, ¶ 38,
355 Mont. 387, 228 P.3d 1134. “One is subject to liability to another for trespass,
irrespective of whether he thereby causes harm to any legally protected interest of the
other, if he intentionally (a) enters land in possession of the other, or causes a thing or
third person to do so, or (b) remains on the land, or (c) fails to remove from the land a
thing which he is under a duty to remove.” Branstetter v. Beaumont Supper Club, 224
Mont. 20, 24, 727 P.2d 933, 935 (1986) (quoting Restatement (Second) of Torts § 158
(1965)). The “intent” element of trespass is fulfilled when “the actor desires to cause
consequences [sic] of his act, or that he believes that the consequences are substantially
certain to result from it.” Branstetter, 224 Mont. at 24, 727 P.2d at 935 (quoting
Restatement (Second) of Torts § 8A (1965)).
¶19 Martin’s complaint alleges a trespass because the Artises’ tree extends over the
shared fence and the roots grow onto his property. The complaint further states that
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“nearly 40% of the tree itself encroaches onto [Martin’s] property over the common
boundary fence” and that “[r]oots from the tree are encroaching onto [Martin’s] property
and are starting to buckle the boundary fence.” Regarding intent, the complaint alleges
that “[Artises] know their tree is growing over the fence onto the property and is buckling
his fence but refuse to do anything to stop it,” that Artises’ “conduct is motivated by
malice and/or willful, wanton and reckless disregard for [Martin’s] rights,” and that
Artises are guilty of actual malice “because they had notice and knowledge of” the
alleged facts. Although Artises argue that the complaint fails to plead an intention to
trespass by way of their tree, we conclude that, for purposes of a M. R. Civ. P. 12(b)(6)
motion to dismiss, intent was adequately pled.
¶20 The complaint alleges that the roots of Artises’ tree have entered, remained on,
and damaged Martin’s property. Because the complaint adequately states a legal claim
for trespass under Montana law, we reverse the order dismissing Martin’s trespass claim,
and remand to the District Court for further proceedings on that claim.
¶21 Affirmed in part, reversed in part, and remanded for further proceedings consistent
with this opinion.
/S/ JIM RICE
We concur:
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ BRIAN MORRIS
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