Trees as Right of Way Hazards Expert Article

Trees along roadways can become hazards: blocking lines of sight, obstructing traffic signs, falling into travel lanes, or simply growing in clear zones.

In this article, tree expert Christopher Larson explores the nuances of liability in cases involving Right of Way (“ROW”) trees, and how tree management responsibilities can vary based on tree ownership, property lines, and municipal governance.

Vegetation Management:
Trees in the Right of Way

When ROW trees are the subject of litigation, liability is not always straightforward. To determine who owns and is responsible for an incident tree, it is essential to obtain the pertinent information from all potential parties. Having this information up front can assist with discovery and depositions.

First and foremost, when a tree is involved in property damage, serious injury, or death, the ownership needs to be determined, as ownership of a tree may involve more than just its location. The center of the tree is the location that often determines ownership.

A ROW easement allows for the use of the land for a specific purpose, like travel or installation of utilities. ROW easements may limit a property owner’s use of their land under easement, but the easement does not imply ownership of the land under easement or necessarily ownership of the trees within it. So even when trees are located within a ROW, the tree itself may still be owned by the parcel owner, which could be residential, commercial, institutional, etc. 

Under some circumstances, local ordinances, municipal codes, and state statutes will specify the ownership of trees within their ROW easements when ROW trees are being managed as green infrastructure. 

Tree Owner Responsibilities

Ownership of a tree comes with responsibilities, some of which may be spelled out in local ordinances, municipal codes, and state statutes and some of which apply to other parties. Other parties may be responsible for roadway or public utility safety that could be negatively impacted by a tree failure.

In many municipalities, the ownership of the trees remains with the property owner, but the municipality is responsible for maintaining safe ROWs and has the responsibility to take action or enforce maintenance and removal of hazardous trees within their ROW.  

It can get more complex, and less intuitive, when a tree is located outside of the ROW, is privately owned, but the tree presents a hazard within the ROW. In this situation, local governance often has a responsibility to notify a tree owner of the hazard and then enforce the mitigation of the hazard. 

It is also common for the power company to get involved when trees are in both the roadway ROW and the overhead utility easement. Reviewing ROW cases in their own context is important because of all the unique ownership and responsibilities that are specific to each incident site.

Exceptions and Protections

Special situations can occur when ROW trees have designated protection through an ordinance, code, or statute. 

Examples of such protections are:

• Heritage trees
• Significant trees
• Historical trees
• Grand trees

These designations often prohibit tree removal, but there are often exceptions to their protection. Exceptions can specify conditions where public safety concerns allow the removal of a protected tree. For trees that are the subject of litigation, this is information that should be sought out early in an investigation.

Residential and commercial ROW trees are often a requirement, imposed by planning and zoning in communities. The requirements for maintenance and care of these trees might not be in the ordinance or code, but in the public planning or landscaping requirements. 

Commercial properties are often required to plant a certain number of trees along their parking areas and ROW limits. Improperly planted trees in close proximity to traffic control signs, and even within sight lines, can also create hazardous situations. Landscape Design errors can also lead to obstructed visibility of oncoming traffic and traffic control signs.

Example Scenario

In my career as a municipal forester, I had a situation where a large elm succumbed to Dutch Elm Disease on private property. The property owner owned the tree but the municipality had a responsibility of shade tree disease control and roadway safety. 

Municipal code required removal of this infested elm tree and provided notice to the owner of such. This dead elm was also a hazard for the public within the ROW, due to the risk of decayed limbs and tree parts breaking off and striking people or property.

In this example, the municipality required removal of the diseased tree within 21 days of its notice to the tree owner. The municipality then has a responsibility to enforce the removal of the tree. 

The tree owner has the responsibility to:

• Remove the tree for compliance with shade tree disease requirements as detailed in the municipal code
• Remove the tree because it represents a hazard and a public nuisance in the municipal code
• Maintain a safe premises as stated in the municipality’s adoption of the international property maintenance code

If this tree had been a hazard along a county road, within the same municipality, the county may also have had the responsibility to notify the tree owner of the hazard and ensure proper mitigation of the hazard. 

Tree Right of Way Hazard Investigations

Initial incident reports with specific location and timing of the incident, as well as quality photos of the failed tree and stump, can provide valuable information to a forensic arborist starting an investigation. Consulting with a forensically trained Board-Certified Master Arborist can be instrumental in navigating through the nuances of a ROW tree case.

For more information, submit an inquiry or call us at 800.813.6736.

Featured Expert

Christopher Larson, BCMA, TRAQ

Board Certified Master Arborist & Tree Expert

Chris Larson is a Board Certified Master Arborist with over 20 years of experience in urban forestry, arboriculture, and landscape design/maintenance. He applies his expertise to a broad range of… read more.