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District Court of Appeal, Third District, California.

Marjorie COATES and Kenneth Francis Coates, Jr., a minor, by Marjorie Coates, his guardian ad litem, Plaintiffs and Appellants, v. Jessie Robson CHINN, also known as Jessie Whipple Robson, also known as Jesse Whipple Robson, and Robert C. Chinn, Defendants and Respondents.*

Civ. 9245.

Decided: May 26, 1958

Charles R. Garry, Francis J. McTernan, Jr., Garry, Dreyfus, McTernan & Keller, San Francisco, and Laura O. Coffield, Napa, for appellants. Taft, Wright & Hopkins, Vallejo, for respondents.

This is an appeal from a judgment following an order of nonsuit in a wrongful death and personal injury action.

Appellants are the widow and minor child of Kenneth Coates, deceased, who was killed when the automobile which he was driving ran into a large limb which had fallen from a eucalyptus tree onto the road way. The accident occurred on a state highway near Oakville in Napa County. The tree from which the limb fell was growing on respondents' property. It was approximately one hundred years of age and was neither diseased nor decayed. The limb was about 6 to 8 inches in diameter at the point where it joined the trunk. It extended outward over the highway a distance of approximately 30 feet. It was affirmatively shown to have been sound and without exterior or internal blemish or defect. It was not shown to have carried an unusual load of smaller branches and leaves. The accident happened November 14, 1954, at about 6:30 P.M. It was dark and the weather was stormy. Decedent was driving at about 45 to 50 miles per hour. Mrs. Coates described the occurrence as follows: Suddenly the end of a broken limb 6 to 8 inches in diameter loomed up in front of the car and there was no way of avoiding it; the jagged end of the limb came through the windshield.

Appellants contend that under the circumstances disclosed in the evidence, respondent was an insurer of the safety of appellants and of decedent because the maintenance of eucalyptus trees along the highway in close proximity thereto constituted an obstruction to the public way and a nuisance. Appellants also contend that on the theory of negligent conduct without regard to nuisance the evidence was sufficient to require submission of the cause to the jury.

If there was a nuisance here it was a public nuisance, that is, an act or omission which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all. Prosser says that the most obvious illustration of a public nuisance is the obstruction of a public highway which inconveniences only those who are traveling upon it. Prosser on Torts, p. 402. If, however, there was a nuisance it was not that type of nuisance which carries with it absolute liability or, as appellants phrase it, the liability of an insurer, since it had its basis, not in an intentional invasion of public or private interest nor in conduct abnormal and out of place in its surroundings, but on the contrary rested upon negligence. Says Prosser, at page 392:

‘* * * [A] nuisance may also result from conduct which is merely negligent, where there is no intent to interfere in any way with the plaintiff, but merely a failure to take precautions against a risk apparent to a reasonable man. The defendant may, for example, carry on some entirely proper activity * * * without reasonable care * * *.

‘* * * [A] public nuisance may also arise through conduct which is merely negligent, * * *.’

Research has not disclosed and our attention has not been called to any statute or ordinance applicable in the locality of this accident which forbids the growing of trees along highways in such close proximity thereto that the trees or their limbs may fall into the public way. In the absence of prohibitory legislation a landowner may grow trees upon his property in proximity to a public way without assuming the obligations of an insurer if, through casualty, a tree or a limb from a tree obstructs the way by falling upon it to the damage of one traveling thereon. Says Prosser, at pages 398–399:

‘Where the basis of the nuisance is negligence, the reasonableness of the defendant's conduct is obviously in issue, and is determined by the familiar process of weighing the gravity and probability of the risk against the utility of his course * * *. [T]here is no liability for nuisance unless the defendant's conduct is unreasonable under the circumstances.’

It is obvious that since the nuisance here complained of, if nuisance there was, had its basis in negligence, and since the test for both that type of nuisance and for negligence is reasonableness of conduct the circumstances considered, the merits of this appeal may hereafter be discussed upon that basis. Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 613, 623, 195 P.2d 501.

The subject of the liability of an owner or occupant of abutting property for damage caused by the fall of a tree into a highway is annotated in 11 American Law Reports 2d, beginning at page 626. The annotation is appended to the report of Caminer et al. v. Northern & London Investment Trust Ltd., decided by the English Court of Appeal in 1949. The plaintiffs had been injured by the fall of the tree and the trial court had given judgment in their favor. On appeal, the decision was reversed for want of evidence of negligent conduct. We quote the summary of the decision as it appears in the report, page 617:

‘An elm tree 120 to 130 years old, which is less than half of the ordinary life of an elm, standing on property adjacent to a highway, was felled by an ordinary gust of wind, injuring persons driving along the highway. It had not been lopped for some time, but its crown of foliage was not of extraordinary size. After the tree fell it was discovered for the first time that disease had attacked the roots, causing them to rot. Although there was testimony to the effect that elms, being shallow-rooted, should be lopped from time to time, the occupier of the property was held not liable to the persons injured, either on the ground of negligence or of nuisance, where nothing in the appearance of the tree indicated that it was likely to be blown over.’

The author of the Annotation states the following, page 627:

‘While the ownership of land carries with it the right of dominion or control, it should be noted that such dominion must be considered, especially with relation to the users of the public highway, not as an absolute, unrestricted dominion, but as a privilege qualified by the collective and perhaps superior rights of the group of individuals who are the public and who are entitled to the enjoyment and safety of the roads dedicated to their use.

‘With reference to this concept of ownership the abutting landowner, in the absence of municipal or statutory regulations placing the control of trees in or along the highway in the public authorities, is required to use due care to prevent harm from falling trees to persons lawfully using the highway. [The author of the annotation states that the phrase ‘fall of tree into highway’ as used by him includes a tree or a limb therefrom which has already fallen into the highway and with which a traveler comes in contact.]

‘Two general situations arise in which the landowner on whose property the tree is growing * * * may be charged with negligence. The first is the situation in which the landowner or someone at his intervention is the active cause of the fall of the tree.

‘The second situation in which the landowner may become liable is that in which the fall of the tree is due to natural processes of decay of which the landowner is or should be cognizant. The view has been taken in this situation that it is the duty of the landowner to exercise reasonable care to prevent the fall of a tree into the highway even though this may entail constant and periodic inspection of the tree to determine its safe condition.

‘* * * [W]hile the landowner is charged with the duty of reasonable inspection to prevent trees abutting or growing in the highway from becoming dangerous to the users of the public highway, it would appear that such liability does not exist where the accident is the result of a defect which such inspection would not reveal.’

Eucalyptus trees are a familar part of the California landscape. From ‘Eucalyptus in California’, by Norman D. Ingham, published as Bulletin Number 196 of the University of California Publications, we read that the eucalypts were introduced in California from Australia in the early fifties; that between 1870 and 1875 considerable planting was done for fuel, windbreaks, and shade along avenues; that in Australia the eucalypti attain an age from 400 to 500 years and dimensions second only to the California sequoias; that many species are said to reach heights of 300 to 400 feet and diameters of 12 to 15 feet; that naturally the timber eucalypts maintain an erect form with strong main axes and slender limbs; that the production of an extensive lateral root system renders the eucalypts very wind firm; that their strong anchorage in the soil, combined with the flexibility of the growing stem, renders them particularly valuable for windbreak purposes, since a break which will yield before the force of the wind tends to deflect the air currents upward and to protect areas far to leeward, whereas an unyielding barrier breaks the wind only on areas in close proximity to it.

The trees being grown and maintained by respondents were comparatively young and the particular tree from which the limb fell was not shown to have been in anywise defective or unsafe. So far as proof goes, inspection of this tree would have revealed no defects, and examination, after the accident, of the tree and of the limb that fell was equally unproductive of any indicia of weakness.

Appellants sought to bring their case within the rule that requires reasonable care on the part of those who, on their land, grow trees in proximity to highways, and for reversal they point to the following testimony: Joseph A. Flynn, whose occupation was stated to be tree surgery, said that in the course of his business he had worked on eucalypti in Napa County, and considered himself an expert. He said that the eucalypti in that county grow very fast and rather rangy (this, according to Ingham, is generally typical of these trees); that in summer, during the hot days, a number of limbs will break due to the excessive flow of sap into the limbs; that a number of them break in the fall, usually with the first rains and the winds, and that these things are common characteristics of eucalyptus trees in that area; that it was standard practice around there to top the trees and shorten the limbs; that the shortening reduced the leverage of the limbs; that prior to trial he had looked at the tree in question; that there had been no obvious change for several years; that the limbs still overhung the highway; that the trees on respondents' property were rather tall and spreading, in the neighborhood of 100 feet high; that the tree in question had a wider circumference around the base than the others; that there were quite a number of dead limbs on the tree, but he would not be in a position to know the conditions of the limbs at the date of the accident; that he estimated the age of the respondents' trees as anywhere from 50 to 150 years; that he saw no evidence of rot in the trunk of the tree in question nor any evidence of disease; that if trees of any species are examined some small dead limbs would be found; that there were many eucalyptus trees in Napa County, probably several hundred thousand; that he possibly trimmed or topped eucalyptus trees for ten or fifteen clients per year; that he did not mean to infer that all landowners in Napa County make it a standard practice to call him in; that eucalypti will drop their limbs, even good healthy ones; that the common practice of topping which he referred to was established by men in the same line of work that he was in; that there were probably three such men in the Napa County area.

Respondent, Jessie Robson Chinn, called under Section 2055 of the Code of Civil Procedure, gave the following testimony: ‘I have been told that it is the nature of eucalyptus trees that their limbs will fall. I do not know it. I have been told so. They do not fall regularly, but fall at times. It is the nature of the trees. The eucalyptus trees along the road were planted in my early childhood. They seem to have always been there. In the last five years I have had no work done on the trees by a tree surgeon. The trees were perfectly healthy as far as I could see.’

We find nothing in the foregoing from which it could be concluded or inferred that respondent had been guilty of negligence in the growing and maintenance of the eucalyptus tree from which fell the limb that caused the death of Mr. Coates and the injuries of Mrs. Coates. We hold that the growing and maintenance of these trees in proximity to highways is not negligence per se; that there must be something in the attained age, or in the reasonably ascertainable condition of the trees sufficient to warn an ordinarily prudent person that permitting the tree to stand in that condition would create an undue risk to persons using the highway; and that the facts shown here do not measure up to that test.

The judgment appealed from is affirmed.

VAN DYKE, Presiding Justice.

SCHOTTKY, J., and WARNE, J. pro tem., concur.