Opinion
2004-1008 D C.
Decided December 13, 2005.
Appeal from a judgment of the Justice Court of the Town of Wappinger, Dutchess County (Carl S. Wolfson, J.), entered January 6, 2004. The judgment, after a nonjury trial, dismissed the action.
Judgment unanimously affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ.
Substantial justice was done in accordance with the rules and principles of substantive law in this small claims action (UJCA 1804, 1807) for damages resulting from the pruning of a tree at or near the parties' property line. A tree is the sole property of the one on whose land its trunk is situated ( see generally Marino v. Lorch, 2 Misc 3d 56 [App Term, 9th 10th Jud Dists 2003]; Flagman v. Rubin, 1 Misc 3d 127 [A], 2003 NY Slip Op 51542[U] [App Term, 2d 11th Jud Dists]; see also 1 NY Jur 2d, Adjoining Landowners § 55). Plaintiff argued in this matter that over the years, the trunk of the tree, which defendant originally planted on his own property, had grown over the property line so that it stood on the land of both parties. This, if established, would render the parties tenants in common in the tree and support an action for damages or for trespass, depending upon the nature of the injury to the tree ( see 1 NY Jur 2d, Adjoining Landowners § 56; see also Dubois v. Beaver, 25 NY 123; Hollenbeck v. Genung, 198 AD2d 677). However, each party in such a case is entitled to conduct ordinary clipping or pruning, so long as this does not injure the main trunk of the tree (1 NY Jur 2d, Adjoining Landowners § 56). Plaintiff introduced no evidence to establish that defendant trespassed upon plaintiff's property to prune the tree, or that the trunk was injured in the operation ( see e.g., 104 NY Jur 2d, Trespass § 50; see also Schwartzberg v. Shek Cheung Lui, 279 AD2d 466), and the court credited defendant's contention that all of the branches trimmed were on his property (at least where they joined the tree) and were trimmed from his property. This determination is entitled to deference upon appeal, as it accords with a reasonable view of the evidence ( see e.g., Claridge Gardens Inc. v. Menotti, 160 AD2d 544).
Moreover, although plaintiff alleged damages "done to mature norwegian spruce due to severe pruning," she in essence sought compensation for the inconvenience of having to install further fencing on her own property because, due to the pruning, the lower branches of the tree were no longer available for screening. As the court below noted, under the circumstances, this is not a cognizable cause of action.