Does a New York county owe a duty to a neighboring homeowner for trees in the county highway right of way that lean toward and threaten the home?

Plain-English summary

Yates County asked a question that had an awkward edge to it: trees stood in the county's highway right of way. A utility company had been trimming branches from one side over the years to keep the lines clear, and the trees were leaning toward a homeowner's house. The county was aware that some of the trees showed decay. If a tree fell and crushed the house, was the county on the hook?

The AG broke the question into two pieces. First, did Highway Law §§ 102 and 139, which give the county a non-delegable duty to maintain its roads in a reasonably safe condition, run to a neighboring homeowner? The AG said no: that statutory duty protects "the traveling public," not adjacent landowners. Citing Lopes v. Rostad and related cases, the opinion concluded the homeowner was not within the protective orbit of those statutes.

Second, did the county owe a common-law duty as a landowner? That depended entirely on what kind of property interest the county held. If the county owned the underlying fee in the road, then it owned the trees on it, and it owed neighbors the same duty any private landowner owes for trees on its property: inspect, detect dangerous conditions, and prevent foreseeable damage to adjoining property. But if the county only held an easement for highway purposes, it did not own the trees. The fee owner did, and the responsibility for pruning or removing them sat with that owner, not the county. The county's role in the easement scenario was limited: under Highway Law § 322, no growing tree in the right of way could be cut down without the highway superintendent's written consent, but that gatekeeping role didn't make the superintendent the primary tree caretaker.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG think the highway statutes protected anyone besides users of the road? A: No. The opinion read Lopes v. Rostad to limit the duty under Highway Law § 102(1) and § 139(1) to "the traveling public." Independent contractors working on a sewer project on the highway were outside the duty (Lopes), and so was a person permitted to remove fallen trees at his own request (Reynolds v. Town of Sherburne). A neighboring homeowner did not fall within the class the legislature was protecting either.

Q: Why did the property interest matter so much?
A: New York's tree-liability cases run on common-law landowner principles. Title to land includes title to the trees on it. If the county owned only an easement in the road, the trees still belonged to the abutting fee owner, and the county had no right to cut them down except for highway purposes (Village of Cattaraugus v. Johnson). It would have been odd to hold the county liable for damage caused by a tree it neither owned nor had the right to remove.

Q: What did the county still owe to drivers on the road regardless of fee or easement? A: A "collateral duty" to maintain the road in a reasonably safe condition, which the Court of Appeals in Harris v. Village of East Hills said extends to trees overhanging the road. The county could be liable to a road user injured by a falling tree or branch if it had actual or constructive notice the tree was dangerous. That duty was independent of whether the county held fee or easement title.

Q: What was the highway superintendent's role under Highway Law § 322? A: Section 322 prohibited cutting down or removing a growing tree within the bounds of a county road without the written consent of the county highway superintendent. That gave the superintendent veto power, not primary care responsibility. The opinion read the section as protecting the public's right of way, not turning the superintendent into the trees' owner. Section 322 also expressly recognized the underlying landowner's interest by saying any tree on land within the bounds of any highway "shall be for the proper use of the owner or occupant of such land."

Q: If the county owns the fee, what level of inspection was expected? A: Holland v. County of Monroe described the duty as one to maintain trees and "establish reasonable inspection procedures to detect dangerous conditions." The standard mirrors what a private landowner owes a neighbor, including the actual-or-constructive-notice rule from Ivancic v. Olmstead.

Q: Did the opinion assign responsibility for damage if a tree did fall? A: No. The AG explicitly declined to apportion liability among the homeowner, the utility company, and the county, noting that turns on the particular facts of the case. The opinion was about whether a duty existed in principle, not how a court would split fault if one did.

Background and statutory framework

Highway Law § 102 placed county roads under the charge and supervision of the county for purposes of construction, improvement, repair, and maintenance, and § 139 made counties liable for injuries or death sustained as a result of a defective or dangerous highway when the county was negligent. Together those sections were the source of the county's duty to road users. New York courts had long held the duty to be a non-delegable one, originating in both common law and statute (Lopes v. Rostad).

The other relevant strand of doctrine was the common-law duty of a landowner to neighbors for trees on the property. Ivancic v. Olmstead and Harris v. Village of East Hills imposed a duty to act on dangerous trees once the owner had actual or constructive notice. That duty turned on ownership, not on possession or control of an easement.

The bridge between the two strands was Highway Law § 102(14), giving the county superintendent of highways "full control of all shade trees within the county roads on the county road system" outside villages, and § 322's consent requirement for cutting down growing trees in the right of way. The AG read these as administrative oversight provisions, not as title-shifting rules that would make the county the legal owner of trees physically located in its right of way.

Citations and references

Statutes:

• Highway Law § 102 (county roads)
• Highway Law § 139 (liability for defective highways)
• Highway Law § 322 (cutting trees in highway)

Cases:

• Lopes v. Rostad, 45 N.Y.2d 617 (1978) (statutory duty extends to traveling public, not to all comers)
• Harris v. Village of East Hills, 41 N.Y.2d 446 (1977) (collateral duty to maintain road extends to overhanging trees)
• Ivancic v. Olmstead, 66 N.Y.2d 349 (1985) (landowner duty for trees turns on actual or constructive notice)
• Holland v. County of Monroe, 126 A.D.2d 975 (4th Dep't 1987) (county's duty as fee owner includes inspection)
• Village of Cattaraugus v. Johnson, 139 Misc. 368 (Co. Ct. Cattaraugus Co.), aff'd, 233 A.D. 799 (4th Dep't 1931) (easement holder does not own trees in right of way)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2011-5_pw.pdf

Original opinion text

Highway Law §§ 102, 102(1), 102(14), 139, 39(1), 322, 372
Discussion of county's duty with respect to trees within highway right of way. February 7, 2011

Bernetta A. Bourcy
County Attorney
Yates County
415 Liberty Street
Suite 204
Penn Yan, New York 14527

Informal Opinion
No. 2011-5

Dear Ms. Bourcy:
You have requested an opinion relating to whether the County has a duty to prevent damage to a homeowner's property under specified circumstances. You have explained that trees stand in the County's highway right of way, between the highway and the homeowner's residence. Over the years, a utility company has trimmed the branches from one side of the trees to keep them away from the utility lines. As a result, the trees lean towards the homeowner's residence. You also have indicated that the County is aware of some evidence of decay on the trees. You have asked whether the County has a duty to prevent potential harm to the residence and its inhabitants, either pursuant to Highway Law sections 102 and 139 or as an adjoining landowner. We will address only the question of whether the County owes a duty to a neighboring homeowner with respect to trees located on the County's highway right of way. We will not address the question of apportioning liability for damage caused by the trees to the homeowner's property among the homeowner, the utility company, and the County, as that question turns on the particular facts.

You raised the possibility of a duty created by sections 102 and 139 of the Highway Law, pursuant to which the County has charge and supervision of the work of constructing, improving, repairing, and maintaining county roads and is liable for injuries or death sustained as a consequence of the highway being defective or dangerous due to the County's negligence. See Highway Law § 102(1); id. § 139(1). The County has a non-delegable duty to maintain its roads in a reasonably safe condition. Lopes v. Rostad, 45 N.Y.2d 617, 623 (1978). This duty originates from both common law and the statutory provisions you cited. Lopes, 45 N.Y.2d at

623. As a result of this duty, the County may be liable to a user of its highway who is injured by
     a falling tree or branch, if the County had actual or constructive notice that the tree was dangerous. See Harris v. Village of East Hills, 41 N.Y.2d 446, 449 (1977) ("[T]he county has a collateral duty to maintain its roads in a reasonably safe condition, and this duty extends to trees which overhang the road" (citations omitted)). This duty of care has been held, however, to extend only to the traveling public rather than, for example, an independent contractor injured while working on the highway on a sewer construction project. Lopes, 45 N.Y.2d at 624-25.

We do not believe that the neighboring homeowner comes within the class of persons the Legislature intended to protect with sections 102(1) and 139(1). See Lopes, 45 N.Y.2d at 623-24 (independent contractor not "within the protective orbit of the statute"); Reynolds v. Town of Sherburne, 80 A.D.2d 652 (3d Dep't 1981) (person permitted to remove fallen trees at his request not within scope of statute).

Apart from the statute, any responsibility the County may have with respect to the trees depends in part on the nature of the County's interest in the right of way: whether it owns the fee simple to the roadbed or whether it simply has an easement for highway purposes. See generally 1975 Op. Att'y Gen. (Inf.) 202 (county board of supervisors may acquire either fee title or easement for purpose of constructing and improving county highway). Title to the trees depends on title to the land. Where the County has only an easement in the highway, it does not have title to the trees in the right of way. Village of Cattaraugus v. Johnson, 139 Misc. 368, 371-72 (Co. Ct. Cattaraugus Co.), aff'd, 233 A.D. 799 (4th Dep't 1931). The County's authority to remove trees under these circumstances are limited to those instances where removal is necessary for proper highway purposes. Id. at 372. In the absence of proper highway purposes, the County has no right to remove a tree and can be held liable to the owner of the tree for the loss of a tree it removes. Stevens v. State, 21 Misc. 2d 79, 82 (Ct. Cl. 1959), aff'd without opn., 14 A.D.2d 823 (4th Dep't 1961); see also Village of Cattaraugus v. Johnson, 139 Misc. 368 (Co. Ct. Cattaraugus Co.), aff'd, 233 A.D. 799 (4th Dep't 1931); Op. Att'y Gen. (Inf.) No. 88-1 (town's right to remove material from within bounds of highway depends on nature of town's ownership of right of way). If the County can be held liable for the loss of a tree it does not own and does not need to remove for highway purposes, it cannot have a duty to protect the owner of the tree or his or her property from damage caused by that tree. See Perkins v. Village of Mexico, 200 Misc. 294, 299 (Sup. Ct. Oswego Co. 1950) (village was not liable for damage caused by branch falling onto plaintiff's house from tree owned by plaintiff within highway right of way).

If, however, the County owns the real property and consequently also the trees, it has a duty arising from that ownership to maintain the trees and to establish reasonable inspection procedures to detect dangerous conditions. Holland v. County of Monroe, 126 A.D.2d 975 (4th Dep't 1987). The County's responsibility under these circumstances would be the same as those of a private property owner, who has a duty to protect adjoining property owners from trees on his or her property that he or she has actual or constructive notice as to the dangerousness of. See Ivancic v. Olmstead, 66 N.Y.2d 349, 350-51 (1985), citing Harris v. Village of East Hills, 41 N.Y.2d 446, 449 (1977); Newman v. City of Glens Falls, 256 A.D.2d 1012, 1013 (3d Dep't 1998).

To be sure, while the primary responsibility for the trees belongs to the owner of the land on which they stand, the county superintendent of highways has a role in overseeing maintenance of the trees within the County's highway right of way. Highway Law § 102(14) places "the full control of all shade trees within the county roads on the county road system," other than those within villages, with the county superintendent of highways. Additionally, Highway Law § 322 prohibits the cutting down or removal or destruction of a growing tree within the bounds of a county road without the written consent of the county highway superintendent. This requirement does not, however, make the county superintendent primarily responsible for the trees. Rather, it ensures that the owner of the underlying fee does not use his or her property in any way inconsistent with the public's right of way. Indeed, Highway Law § 322 also recognizes the landowner's interest in his or her tree. See Highway Law § 322 ("Any tree standing or lying on land within the bounds of any highway shall be for the proper use of the owner or occupant of such land."). By requiring the consent of the highway superintendent before removing a growing tree, the homeowner receives confirmation from the County that removal of the tree is consistent with the County's highway right of way. Therefore, it is the landowner who is responsible for pruning or removing trees he or she owns that are within the highway right of way, but before cutting down, removing, or destroying a growing tree, he or she must receive the written agreement of the highway superintendent. The County should not unreasonably withhold such consent.

In summary, we conclude that the County is responsible for protecting users of the county highway from trees and tree limbs adjacent to county highways that present a danger to such users of the highway, whether the trees or limbs are within the highway right of way or located on land to which the County holds title. As for protecting a neighboring homeowner from the potential danger presented by a leaning tree located in the highway right of way, the County is responsible if and only if the County holds title to the land and thereby to the tree.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,
KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions