(dissenting).
My disagreement with the majority opinion may be grouped as follows: (1) the adoption of an inappropriate rule of law for New Mexico; (2) the improper application of that law to the facts of this case; and (3) the erroneous assessment of damages.
The majority adopts the rule stated in Whitesell v. Houlton, 2 Haw.App. 365, 632 P.2d 1077 (1981) referred to in that case as the “modified Virginia rule.” In effect this rule provides for liability on the part of the owner of a tree when overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life. “Sensible” in this context undoubted-. ly means “perceptibly large: of a significant size, amount, or degree: Considerable * * * ” Webster’s Third New International Dictionary (1966), because the rule excludes liability for minor damages such as casting shade or dropping leaves, flowers or fruit.
In my opinion, the Massachusetts view adopted more than fifty years ago in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931), Annot., 76 A.L.R. 1109 (1932) offers the preferable rule and one best suited to the facts of this case. The facts in Michalson are strikingly similar to those in the case before us. In that case plaintiffs alleged that roots from a poplar tree growing on defendant's property had penetrated their property and had filled up sewer and drain pipes, and had also grown under a cement cellar causing it to crack. The court held that plaintiffs were not entitled to equitable relief to compel their adjoining landowner to remove roots invading plaintiffs’ property or to restrain such encroachment or recover damages therefor. Quoting in part from Countryman v. Lighthill, 31 N.Y.Sup.Ct. 405 [24 Hun 405], the court in Michalson said:
“ ‘It would be intolerable to give an action in the case of an innoxious tree . whenever its growing branches extend so far as to pass beyond the boundary line and overhang a neighbor’s soil.’ It would be equally intolerable where roots penetrate the neighbor’s soil.”
175 N.E. at 490.
Michalson also holds that the neighbor, though without right of action if harm results to him, is not without a remedy. He can cut off the intruding boughs and roots. The rationale of the opinion is stated as follows:
The common sense of the common law has recognized that it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.
175 N.E. at 491.
While agreeing that the Massachusetts rule was “simple and certain” the Intermediate Court of Appeals of Hawaii in White-sell questioned whether it was realistic and fair, especially when applied to banyan trees in the tropics. Whitesell involved a banyan tree, described in the opinion as a large evergreen of the fig family whose branches send out aerial roots which grow down to the soil to form secondary trunks. The trunk of the tree in that case was approximately twelve feet in diameter. Its height was 80 to 90 feet with foliage extending 100 to 110 feet and overhanging the plaintiffs’ property. The tree damaged the plaintiffs’ garage, their car and, as a result of a storm which broke large branches, threatened to do further damages. The defendant failed to respond to requests to cut the intruding branches. The court upheld an award of damages which included the cost of repairs and cost of trimming the tree.
A rule which imposes liability for the mischief done by one’s invisible tree roots, as in the case before us, would not only discourage the planting and cultivation of trees, but would encourage disagreements between neighbors, leading, as here, to vexatious lawsuits.1 The rule adopted today might be well-suited for a lush tropical state such as Hawaii, but is ill-suited for an arid and sparsely vegetated state such as New Mexico where many residents live on small sized lots. After reviewing the various rules adopted by other states, the court in Sterling v. Weinstein, 75 A.2d 144 (D.C.1950) said:
The simplicity and certainty of the Massachusetts rule appeals to us. It leaves no doubt as to the rights and obligations of the parties. While it places the burden on the owner of land to protect himself by cutting the invading branches and roots, generally that burden is not great. It is of some significance that in this and many other jurisdictions there have been no reported cases involving this question. This would indicate to us that generally these questions between adjoining owners may be adjusted without the aid of courts and that the self-help rule is sufficient.
Id. at 148. I agree with that statement.
This brings me then to the difficulties of applying the Whitesell rule to the facts of the present case. That rule is based on a non-noxious tree becoming a nuisance only when it causes, or there is imminent danger of it causing, sensible harm to property other than plant life. Nuisance does not constitute a separate tort itself. See Moreno v. Marrs, 102 N.M. 373, 695 P.2d 1322 (Ct.App.1984), cert. pending. Negligence by a defendant may, however, provide the basis for an award of nuisance' damages. See Moreno. In the present case plaintiff plead defendant’s negligence.
The trial court found the tree non-noxious, but that “Defendant Fox negligently maintained the cottonwood tree and allowed its roots to cross into the Plaintiff’s property and damage the Plaintiff’s house and patio.” The facts show that defendant moved from his property in Albuquerque and was living in California when given notice sometime in late May or June 1979 that plaintiff was claiming damage to the common wall, a concrete slab, foundation and sprinkler system due to defendant’s cottonwood tree. Following an exchange of correspondence between defendant and plaintiff’s attorney, defendant traveled to New Mexico in October, 1979 to investigate the claim. He dug a trench between his tree and the common wall as described in the majority opinion. No roots were found. Defendant engaged a landscape contractor to inspect the trench and advise him what cause of action to take. The landscaper found no roots large enough to do damage and gave the opinion that plaintiff’s problems were not due to roots coming from defendant’s property. Plaintiff’s expert testified that it would be reasonable to assume that the cottonwood was not the cause of the problem if roots could not be found in the trench within thirty inches of grade. Defendant and his landscape contractor did not find any roots; what more could defendant be expected to do? Plaintiff did not quarrel at the time with the steps defendant had taken. Defendant returned to California and was sued in December 1979. Even if we accept the testimony of Professor Feather that the roots from defendant’s cottonwood probably were responsible for the damage to plaintiff’s property, there is no evidence that defendant’s conduct caused that damage. Measured by what a reasonably prudent person would have done, coupled with Professor Feather’s testimony, I would hold no liability.
Because defendant had no notice or knowledge before the summer of 1979, how could he possibly be liable for damage caused before that time, even assuming his own investigation inadequate? In Texas-New Mexico Pipeline Co. v. Allstate Construction Ins., 70 N.M. 15, 369 P.2d 401 (1962) the supreme court held that where a contractor was without knowledge or notice of an underground pipeline, he could not be chargeable with negligence in striking the pipeline. Cases dealing with landowner-invitee duties and liability are instructive on this point. Dempsey v. Alamo Hotels, Inc., 76 N.M. 712, 418 P.2d 58 (1966) held that a possessor of land is liable for physical harm caused to his invitees by a condition on the land if, but only if, he knows or by the exercise of reasonable care would have discovered the condition. See also Simon v. Akin, 79 N.M. 689, 448 P.2d 795 (1969); Brown v. United States, 122 F.Supp. 166 (D.N.M.1954). There is no evidence that defendant knew or should have known before the summer of 1979 that the subterranean roots from his cottonwood had invaded plaintiff’s property. Even if defendant had been living on the property, rather than in California, there is no evidence to prove notice or knowledge.
Whitesell predicates its rule on notice or knowledge that a property owner’s tree constitutes a danger. With a banyan tree, an owner would know what the roots of that tree are doing because they are plainly visible. Not so with the cottonwood in question. There is no evidence of the roots running along the surface, and as noted, trenches dug failed to reveal any roots going toward plaintiff’s property. In my view, the “banyan tree rule,” even if adopted, cannot be applied to the facts of this case.
Closely related to notice or knowledge problem is the assessment against defendant for damages accruing before he had notice. The trial court concluded that “Defendant Fox had the right to grow a non-noxious tree on his property and could only be held liable for damage accruing after notice and then only if he did not take reasonable action to remedy the situation.” Even if it can be said that defendant failed to take reasonable action to remedy the problem after being given notice, the trial court’s conclusion makes clear he was to be held liable only for damages accruing after notice. Yet, the amount awarded appears to reflect the full amount for repairs and corrective action. The award then is contrary to the trial court’s own conclusion.
Further, unless we make property owners guarantors, I do not understand how defendant could be held liable for any damage accruing before he had notice. The expert testimony makes clear that at least a portion, if not the greater portion, of the damage was done before defendant was notified. This is borne out by plaintiffs letter of June 19, 1979, which outlines damage done as of that date.
For the foregoing reasons I dissent, and would dismiss plaintiffs suit as not being actionable. At the very least, I would remand to apportion the damages so that defendant not be liable for damages accruing before he had notice.
. The exhibits reflect defendant removed a number of trees in the 1970’s to accommodate plaintiff.