Washington Law Review Online

Article Title

Radical Jurisprudence


Benjamin Gould

First Page



A neighbor digs a ditch on his side of a property line, exposing root systems from two of the adjoining landowner’s trees. The neighbor then cuts off the exposed roots, leaving the trees unsupported and in danger of falling onto the house of their owner. Is the root cutter liable to the owner of the tree? The Washington Court of Appeals recently answered this question in Mustoe v. Ma. The Mustoe Court held that when a root-cutting neighbor removed encroaching tree roots, he owed no duty to the tree owner “to act in good faith and to act reasonably so as not to prevent damage to the trees.” And so the root cutter could not be held liable for that damage. This holding, though perhaps trivial-seeming, turns out to have troubling consequences. On a practical level, it gives the malicious a powerful weapon to wield against their neighbors. On the level of legal doctrine, the court’s analysis unsettles Washington’s law of nuisance. In what follows, I will summarize the facts of the case and the court of appeals’ holding, and then turn to how and why the court of appeals got the case wrong. I will close with some suggestions about how the court of appeals should have decided the case.