(concurring in part and dissenting in part).
I agree with the majority that plaintiff has no claim against defendant based on alleged negligent failure to maintain the trees properly. In the circumstances of this case I fail to see how defendant owed plaintiff any duty with respect to watering or fertilizing the trees. Such a duty would come as quite a surprise to most homeowners and could only engender in appropriate litigation.
Aside from the negligence claim, Abbinett v. Fox, 103 N.M. 80, 703 P.2d 177 (Ct.App.1985) should govern this case. Recognizing that disputes like this do not belong in the courts, we declared in Abbinett that self-help is a property owner’s sole remedy against encroachment by roots and branches from vegetation on neighboring property, when the only threatened injury to property from the encroachment is injury to plant life. I see no reason why encroachment by tree trunks should be treated differently from encroachment by roots or branches. Therefore, plaintiff has no claim against defendant for damages or injunctive relief.
Although Abbinett resolves this appeal, it does not resolve this dispute. Left to the future is the question of the extent to which plaintiff may exercise self-help when there is no threat to any property except plant life. Usually there would be no problem with plaintiff’s removing all portions of the trees on her property; but the district court found that removal of the intruding portions of the trunks would cause substantial harm to the trees and that trenching of the roots without comparable branch trimming could create a danger by undermining the support of the trees.
We should not resolve that question on this appeal. The issue of the limits, if any, on self-help was not raised below or in the appellate briefs. It should be noted, however, that the right of self-help on one’s own property may not be unlimited. Abbinett did not reach this issue; it is undecided in New Mexico.
A limitation on self-help may be inferred from the rule, recognized in the majority opinion, that a joint owner of a tree cannot trim branches and roots if such acts materially damage the tree. Why should a non-owner have a greater right to harm a tree? I would expect that ordinarily one would have greater rights in a boundary tree when one is a joint owner rather than a non-owner. For example, in Rhodig v. Keck, 161 Colo. 337, 421 P.2d 729 (1966) (En Banc), the plaintiffs wanted to prove they were joint owners so they could obtain damages from defendant for chopping down the trees. Therefore, a property owner exercising self-help on his own land with respect to a neighbor’s tree may need to exercise due care not to damage the tree substantially. Cf. Beals v. Griswold, 468 So.2d 641 (La.App. 4th Cir.1985) (considers cause of action by owner of tree against neighbor for improper trimming of branches). There may also be a cause of action if negligent self-help endangers neighboring property by undermining the tree's support. On the other hand, one may have the right to use self-help regardless of the consequences to the tree (1) if one takes action promptly after an unwanted tree sprouts or is planted at the boundary of one’s property, or (2) if one gives fair warning of what one will do if the tree begins to encroach as it grows.
Of course, nothing prevents the parties from agreeing on how much trimming and trenching plaintiff may perform.