Saturday, September 15, 2007

Sign of the Times

My old torts professor, Guido Calabresi (now the Honorable Guido Calabresi, a judge on the U.S. Court of Appeals for the Second Circuit) always loved to point out how the common law reflected values and how it continually modified itself to keep up with the times and with shifting values and technology. In the old West, in states where farming interests were dominant, a rancher was liable for crop damage cause by a cow that wandered onto a neighboring farm, but in states where ranching interests were dominant, the rancher was liable only if the cow broke through a fence to reach the farm -- and fences couldn't be built because they were prohibitively expensive. But then the invention of barbed wire made fences cheap.

Guido must be savoring the latest news from Virginia: the Supreme Court there has altered the ancient common law rule of tree liability. The case arose when a certain Richard Fancher, of Fairfax County, Virginia, noticed that a large "sweet gum" tree on his neighbor's property was acting awfully aggressive: its roots were bulging through the retaining wall that divided the properties, disarranging his patio, and blocking his sewer pipes. Fancher complained to the neighbor, but the neighbor, who I presume liked that big, old tree, wouldn't. And Fancher ran into his powerlessness under the old law of trees.

The old rule was that if a tree on your neighbor's property started to encroach onto yours, your remedy was limited to "self-help": you could cut back the tree's roots and branches as far as the property line. But you had no right to have the tree cut down and no remedy against the damage it did. The law favored the tree owner. Virginia actually followed a slight variant of this rule -- you had a remedy if the tree was "noxious," but of course that required the rather difficult determination of which trees were "noxious."

Yesterday's decision changed the law -- at least in Virginia. And the change is a lovely reflection of the common law moving with the times. The old rule, the court said, was appropriate to its day, when conditions were rural and the population engaged in agriculture. The rule, however, is unsuitable to modern, urban and suburban life. So the court overruled the old case and held that while you still cannot complain about your neighbor's trees insofar as they block the sun or drop leaves, flowers, or fruit, if they are causing actual harm or are imminently likely to do so, they can be regarded as a "nuisance," which gives you a remedy against your neighbor.

Now, here's your assignment: how would you rule in the next case, in which the plaintiff makes the modern, increasingly heard claim, "my neighbor's tree is blocking my cell phone reception"?

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