## Facts

- Philip and Elizabeth Whitesell and Edward Houlton owned adjoining residential properties.
- On Houlton’s property stood a large banyan tree whose foliage and branches overhung the Whitesells’ property and the street in front of both properties.
- In April 1975, the Whitesells asked Houlton to cut back the overhanging branches; he refused.
- In June 1975, the Whitesells rented equipment and cut some intruding branches themselves.
- In July 1975, the Whitesells repaired their garage roof due to damage caused by the tree’s branches.
- In January 1976, while the Whitesells drove on the street in front of the properties, their van was damaged by the tree’s branches.
- In February 1976, the Whitesells warned Houlton by letter that storm-broken branches were dangling over their driveway and were likely to fall; Houlton did not respond.
- In May 1976, the Whitesells hired a professional tree trimmer who cut the branches back to Houlton’s property line.
- The trial court awarded damages including equipment rental, roof repair, van repair, and one-half of the professional trimming cost.

## Issues

1. Whether an owner of a non-noxious tree has a duty to prevent overhanging branches or protruding roots from causing damage to an adjoining owner’s property (beyond mere shade or ordinary debris).
2. Whether, when overhanging branches or roots actually cause or imminently threaten sensible harm to non-plant property, the affected neighbor may recover damages and compel abatement or recover reasonable abatement costs if the owner does not act within a reasonable time.
3. Whether the trial court erred by not finding the Whitesells contributorily negligent regarding the van damage.

## Decision

- The Intermediate Court of Appeals of Hawaiʻi affirmed the judgment for the Whitesells.
- The court held that overhanging branches or protruding roots become a private nuisance only when they actually cause, or pose an imminent danger of causing, sensible harm to property other than plant life, in ways other than shade or ordinary debris.
- When such actual or imminent harm exists, the tree owner is liable for resulting damages and has a duty to cut back the endangering branches or roots.
- If the tree owner does not abate within a reasonable time after notice, the neighbor may arrange the cutback and recover the reasonable cost from the tree owner.
- The court found no reversible error in the trial court’s implicit rejection of contributory negligence concerning the van damage.

## Legal Principles

- Non-noxious vegetation is not ordinarily a nuisance; overhanging branches that only cast shade or drop leaves, flowers, or fruit are not actionable.
- Encroaching branches or roots constitute a private nuisance only when they actually cause, or imminently threaten, sensible harm to property other than plant life, beyond shade or ordinary debris.
- When actionable harm or imminent danger exists, the injured or endangered neighbor may recover damages and may require the owner to abate by cutting back the offending portions; if the owner fails to act within a reasonable time, the neighbor may abate at the owner’s expense.
- A landowner may always, at the landowner’s own expense, cut encroaching vegetation back to the property line above or below ground.

## Conclusion

The court affirmed liability and cost shifting in a tree-encroachment dispute, holding that a non-noxious tree’s overhanging branches create a private nuisance only upon actual or imminent sensible harm to non-plant property, and that after notice and unreasonable inaction the neighbor may recover damages and reasonable trimming costs.


Whitesell v. Houlton, 632 P.2d 1077 (Haw. Ct. App. 1981)