A week for questions.  Unhappy homeowner Sylvia Glade of urban Cincinnati (not her real name, of course) wrote us to ask about her neighbor’s mighty oak tree.  It seems the tree had a branch overhanging Sylvia’s home.  The branch constantly dropped sticks, even as the tree shed branches regularly.  As far back as 15 years ago, Sylva began asking her neighbor to do something with the tree, which Sylvia considered to be dangerous.  A tree expert Sylvia hired to look at her trees agreed, saying the big oak should go.

    The neighbor was unmoved.  She told Sylvia that she could cut down the tree at Sylvia’s expense, but then denied her the right to enter the property to do so.  With the property line hard up against Sylvia’s house, without her neighbor’s cooperation she couldn’t even cut away the branch.

    The good news is that Sylvia doesn’t have to worry about that branch any more.  The bad news is that that’s because the branch fell on a windy day, crushing two floors of her house.  The neighbor’s insurance policy said, “Oops, act of God!  Not our responsibility.”  Sylvia thinks God should be left out of things, because the branch — which broke right at the trunk — looked plenty decayed.

    So Sylvia has asked us: The insurance company says the neighbor, a nice old lady, had no idea the tree wasn’t healthy.  “She didn’t know, so we don’t owe,” the company’s mantra seems to be.  Sylvia says she told the neighbor on many occasions, and even the neighbor admits she saw decayed branches that had fallen from the tree, and she hired Sylvia’s son to carry some large ones away.  But Sylvia wondered what the standard is.

    We start with the Massachusetts Rule: a homeowner usually has no remedy against overhanging branches that drop the usual leaves and nuts in season, other than his or her right to trim the branch back to the boundary line.  That Rule has come under some fire recently, notably in the Virginia Supreme Court case of Fancher v. Faglia in September 2007.  The Court there said that where the tree is a nuisance, the owner of the tree is liable for removing it.

    The relevant Ohio case is Nationwide Insurance Co. v. Jordan.  Mrs. Jordan’s mighty oak fell, damaging the neighbors’ place.  Their insurance company paid, then sued Mrs. Jordan, claiming the tree trespassed.

    No dice, the Court said.  The trespass would only work if the tree were an absolute nuisance, and that isn’t the case.  Mrs. Jordan would be liable if she actually knew the tree were dangerous, or had constructive notice of the danger.  She didn’t and the plaintiff, although vociferous in her condemnation of the tree, admitted she never told Mrs. Jordan.

    In Sylvia’s case, the insurance company is wrong.  It’s not enough that the neighbor says she didn’t know the branch was dangerous.  She couldn’t be on constructive notice, either, which means that she couldn’t have reasonably known.  If Sylvia is right, the evidence will show the neighbor was told many times the tree was dangerous.  And other Ohio cases (such as Wertz v. Cooper) suggest the neighbor — being an urban dweller — has a greater duty to inspect her trees than would a country squire.  The evidence suggests she was told, she saw the branches over the years, and she even hired Sylvia’s kid to haul off big branches that had fallen.

    The insurance company may want to rethink its position and start looking for its checkbook.