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Branches and roots don’t trump property rights in Pennsylvania, the Commonwealth Court has ruled. Tree branches and roots that crept over a property line for 21 years do not establish a prescriptive easement, the court ruled in a case of first impression Wednesday. The judges deciding Koresko v. Farley defined a prescriptive easement as a right to use someone else’s property that is acquired by a use of that property in an open, notorious and uninterrupted manner for at least 21 years. The owners of a property in Radnor had argued that several old trees lining their property with branches and root systems extending into a neighboring property had created an easement. They said plans to develop the neighboring land and install a driveway and water line near the trees would unreasonably interfere with the easement. The Chester County Court of Common Pleas disagreed, and the Commonwealth Court panel affirmed that holding. “Encroaching tree parts, by themselves, do not establish ‘open and notorious’ use of the land,” Judge Robert E. Simpson Jr. wrote. “Neither roots below ground nor branches above ground fairly notify an owner of a claim for use at the surface. In the absence of additional circumstances, such as use of the ground for maintenance or collection of leaves or fruit, roots and branches alone do not alert an owner that his exclusive dominion of the ground is challenged.” The court said this conclusion was analogous to the Pennsylvania Supreme Court’s 1950 decision in Maioriello v. Arlotta that the presence of windows near a lot line does not create a prescriptive easement for light and air. The Commonwealth Court adopted the holding and reasoning of a Kansas appellate court that in 1985 ruled that a prescriptive easement cannot be acquired by overhanging tree branches. “The result reached here will be distasteful to all who treasure trees,” the Kansas court wrote. “The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each owner’s rights insofar as that is possible. Any other result would cause landowners to seek self help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.” Simpson said that the statement was “so clear, simple and true” as to convince his court of its wisdom. John J. Koresko V and Bonnie J. Koresko lived next to Ollie Bower, who sold his property to M.J. Farley Development Co., in 1999. The township approved a plan submitted by the company to subdivide Bower’s old property and build a second house, according to the opinion. The Koreskos did not appeal the approval of the subdivision plan, according to the opinion, but when they learned the company planned the construction of a driveway and installation of a water line near their trees, they sued. The Koreskos were not notified that the neighboring property was going to be developed, said Virginia Miller of Anderson Kill & Olick, who represented them. They said the construction would damage the root systems of the trees lining their property, claiming that the trees — mostly oaks estimated to be more than 70 years old — had created an easement. “Rather than . . . making a private drive on the other side of the property, they put it right down the line of the boundary trees,” Miller said. The building went forward as the litigation was pending, and today the house is complete, Miller said. The driveway was installed and workers dug at least six feet deep to put in a water line and propane tanks. The boundary trees are all dying, she said. “There’s nothing we can really do about it at this point, but we’ll appeal and see what the Pennsylvania Supreme Court has to say,” Miller said. “I think trees have a place in this society.” Vincent M. Pompo, the lawyer who represented Tredyffrin Township — which the Koreskos also named in their suit — saw the case differently. “This is the kind of case that results when you have a dispute between residential homeowners because there is some development going on next door,” Pompo said. The defendants contended that the Koreskos had not proven the existence of an easement, arguing that the encroaching tree roots and branches were not the “open and notorious” conduct needed to create an easement. Pompo, who practices at Lamb McErlane in West Chester, noted that if the Koreskos’ theory were adopted, some property owners may worry about a neighbor’s tree roots growing on their property because an easement would come into being if those roots continued to grow for more than 21 years. “For example, if I don’t want my neighbor’s tree roots to grow on my property, before 21 years were up I might make sure those roots weren’t there,” Pompo said. “I might sue him – because up until 21 years, those roots are trespassing on my property.” Thus, under the Koreskos’ theory, property owners would have an incentive to force neighbors to take down their trees, Pompo said. The Commonwealth Court did note that if it accepted the Koreskos’ argument, the consequences could be “problematic.” “Judicial notice can be taken that trees growing over property boundaries and streets, around utility lines, and under sidewalks are common in Pennsylvania,” Simpson wrote. “A decision suggesting that the prolonged presence of these tree parts assures their unreduced continuation could cause uncertainty.” Senior Judge Charles P. Mirarchi Jr. and Judge Dan Pellegrini also participated in the decision. (Copies of the 21-page opinion in Koresko v. Farley , PICS No. 04-0341, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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