Steven Riso v. Wilma Boyd

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STEPHEN V. RISO and ) No. 80457-0-I
LAUREN E. HULBERT, husband )
and wife, )
)
Respondents, )
)
v. )
)
WILMA BOYD, an individual, ) UNPUBLISHED OPINION
)
Appellant. )
)
VERELLEN, J. — A tree straddling the property line of adjoining
landowners may be a “boundary tree” co-owned by the landowners. But a tree
that is entirely within the boundary line of one property is not a boundary tree,
and the owner of the property has the right to remove it. The mere presence of
a fence that bisects the tree is of no consequence.
Because the large cedar tree in dispute is entirely within the boundaries
of Stephen Riso and Lauren Hulbert’s property, they have the exclusive right to
remove the tree. And because they own the tree, their claim against Wilma
Boyd for nuisance based on damage caused by the tree necessarily fails.
No. 80457-0-I/2
Therefore, we affirm the declaratory and injunctive relief granted to
ensure Riso and Hulbert’s ability to remove the tree without interference but
reverse the money judgment against Boyd for damages based on nuisance.
FACTS
Stephen Riso and Lauren Hulbert are married and are neighbors of
Wilma Boyd. Their properties share a common boundary line. There is a
fence, but it is not on the property line. A large western red cedar tree bisects
the fence.
Initially, Riso, Hulbert, and Boyd all believed that the tree was a
“boundary tree” shared equally between them. In 2014, Riso and Hulbert
started discussing the tree’s removal with Boyd because it was damaging their
property. Boyd refused to consent to the tree’s removal, believing it was
partially on her property.
However, on July 3, 2018, a survey revealed that the tree was entirely on
Riso and Hulbert’s property. Later that month, Riso and Hulbert sued Boyd for
nuisance and declaratory and injunctive relief.1 Riso and Hulbert filed a motion
for partial summary judgment on the issues of nuisance and declaratory and
injunctive relief. The trial court granted summary judgment in favor of Riso and
Hulbert.
A commissioner granted Boyd’s motion for discretionary review.
1Riso and Hulbert also sued Boyd for negligence and breach of contract.
But those claims were not included in their motion for summary judgment and
are not at issue on appeal.
2
No. 80457-0-I/3
ANALYSIS
Boyd contends that the trial court improperly granted summary judgment
in favor of Riso and Hulbert because there was a genuine issue of material fact
whether the tree was a “boundary tree.”
We review an order granting summary judgment de novo.2 Summary
judgment is appropriate only “‘where there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.”3 We view the
evidence in the “light most favorable to the non-moving party.’”4 “The party
opposing a motion for summary judgment may not rely on speculation, on
argumentative assertions that unresolved factual issues remain, or on having its
affidavits considered at face value.”5 “The nonmoving party must set forth
specific facts that sufficiently rebut the moving party’s contentions and disclose
that a genuine issue as to a material fact exists.”6 “Ultimate facts or conclusions
of fact are insufficient; conclusory statements of fact will not suffice.”7
2
Seiber v. Poulsbo Marine Ctr., Inc., 136 Wn. App. 731, 736, 150 P.3d
633 (2007).
3 Id. (quoting CR 56(c)).
4 Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 271, 285 P.3d 854(2012).
5 Seiber, 136 Wn. App. at 736.
6 Id.
7 Id.
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“‘[A] tree, standing directly upon the line between adjoining owners, so
that the line passes through it, is the common property of both parties.’”8 If both
parties own the tree, each party has an interest in the tree that is proportionate
to the portion of the tree trunk growing on each property.9
But here, Riso’s declaration and attached exhibits establish that the tree
was entirely on their side of the property line. The survey unambiguously
recites that the tree is a “Cedar Tree West of Property Line.”10 The legal
question of who must consent to commence a lawful removal of the tree turns
on who owns the tree.11 Because the survey revealed that the tree was entirely
on Riso and Hulbert’s property, Riso and Hulbert exclusively own the tree and
are entitled to remove it.
Boyd initially disputes the accuracy of the survey. She argues that the
“irregular shape” used on the survey to demonstrate the location of the tree
does not clearly show that the tree is entirely on the Riso and Hulbert side of
the property line. But Boyd presented no evidence on summary judgment to
support her assertion that the July 3, 2018 survey was vague. Thus, her
8 Herring v. Pelayo, 198 Wn. App. 828, 836, 397 P.3d 125 (2017)
(alteration in original ) (quoting Happy Bunch, LLC v. Grandview N. LLC, 142
Wn. App. 81, 93, 173 P.3d 959 (2007)).
9 Happy Bunch, 142 Wn. App. at 93. In Happy Bunch, this court rejected
the rule adopted by some states that “absent a showing of an agreement to the
contrary, a boundary line tree belongs entirely to the party on whose land the
tree was originally planted, with damages calculated accordingly.” Id. at 92.
10 Clerk’s Papers (CP) at 55.
11RCW 64.12.035; RCW 64.12.030; Mustoe v. Ma, 193 Wn. App. 161,
164-68, 371 P.3d 544 (2016).
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No. 80457-0-I/5
assertion is pure speculation rather than a reasonable inference that the survey
is unclear.
Boyd also contends that the other portions of Riso’s declaration, such as
the evidence from the arborists’ recounting the tree’s diameter and the aerial
photos, allow a reasonable inference that the property line “goes more or less
through the middle of the tree.”12 But those arguments are not persuasive.
Again, Boyd presented no evidence on summary judgment to support her
assertion that the arborists’ used the property line interchangeably with the
“fence line.” And because the mere presence of a “fence line” here is not
germane to who owns the tree, references to the tree straddling the “fence line”
are not material. Further, references to the tree as a “boundary tree” made by
Riso, Hulbert, and their counsel were all made prior to the July 3, 2018 survey.
These references are not determinative of where the tree is actually located or
of who owns the tree.
Boyd contends that if the tree is entirely on Riso and Hulbert’s property,
then no nuisance exists because there is no need for Boyd to agree to removal
of the tree. As discussed, the tree is entirely on Riso and Hulbert’s property, so
they own the tree. And, as the owners, Riso and Hulbert are entitled to remove
the tree subject to any City of Seattle regulations.13
12 Appellant’s Br. at 13.
13 RCW 64.12.035; RCW 64.12.030; Mustoe, 193 Wn. App. at 164-68.
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No. 80457-0-I/6
But Riso and Hulbert provide no authority that Boyd can be liable for
nuisance for damages caused by the tree they own. They fail to establish that
Boyd’s refusal to consent to removal of the tree is actionable when she has no
ownership interest. The undisputed facts do not support a granting of summary
judgment in favor of Riso and Hulbert on their nuisance claim.
Boyd argues that Riso and Hulbert are not entitled to injunctive and
declaratory relief because such relief is “neither necessary [nor] proper.”14
An injunction can be granted when “it appears by the complaint that the
plaintiff is entitled to the relief demanded and the relief . . . consists in
restraining the commission or continuance of some act, the commission or
continuance of which during the litigation would produce great injury to the
plaintiff.”15 “Further relief based on a declaratory judgment or decree may be
granted whenever necessary or proper.”16
Here, even though Riso and Hulbert own the tree and have the right to
remove the tree, the exhibits attached to Riso’s declaration demonstrate Boyd’s
unwillingness to cooperate with the tree’s removal. As a result, the court
granted declaratory and injunctive relief that “[Riso and Hulbert] may remove
the [ ] tree at their own expense and [Boyd] is prohibited from taking any action
to delay or prevent removal of the [ ] tree.”17 The undisputed facts support
14 Appellant’s Br. at 17 (quoting RCW 7.24.080).
15 RCW 7.40.020.
16 RCW 7.24.080.
17 CP at 186.
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No. 80457-0-I/7
summary judgment in favor of Riso and Hulbert on their claim for declaratory
judgment and injunctive relief.18
Therefore, we affirm the partial summary judgment as to declaratory and
injunctive relief, allowing Riso and Hulbert to remove the tree and precluding
Boyd from interfering with that removal. But we reverse the partial summary
judgment as to nuisance granting money damages in favor of Riso and Hulbert.
We affirm in part and reverse in part.
WE CONCUR:
18Boyd also argues that the trial court erred in granting Riso and
Hulbert’s counsel more time at oral argument on their motion for summary
judgment. But because our review on a motion for summary judgment is de
novo and he fails to establish any prejudice from the time limits imposed, this
issue does not support any relief on appeal.
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