From the several theories that have been developed on this subject, the three Maryland courts involved in the Melnick decision adopted the “Massachusetts Rule,” which limits the remedy of the landowner who is harmed to self-help in almost all circumstances.
The Massachusetts Rule has not been universally accepted. In contrast, § 840 of the Restatement (Second) of Torts (1977) imposes a duty on a landowner to abate the condition when the encroaching vegetation is “artificial” — that is, when it is a result of human activity — but not when it is “natural.” The Maryland Court of Appeals noted that only a minority of other courts have applied the Restatement rule because of the difficulty in determining whether a tree or its growth may be as a result of human activity. Under the “Virginia Rule” liability would exist if a tree or plant is “noxious,” but liability would be limited to self-help if the tree or plant is not noxious. The “Hawaiian Rule,” for which Melnick argued, would impose liability for damages caused “other than by casting shade or dropping leaves, flowers or fruit.” In Melnick, the Maryland Court of Appeals rejected these other rules.
The Court of Appeals in Melnick held that the Massachusetts Rule should be followed because any other rule “might spawn innumerable and vexatious lawsuits.” Judge John Eldridge wrote for the Court, “We have gotten along very well in Maryland, for over 350 years, without authorizing legal actions of this type by neighbor against neighbor.” Furthermore, the Court declined to categorize living trees, plants, roots, or vines as a nuisance, which must be abated.
In the final footnote of the Melnick case, the Court of Appeals acknowledged that there may be a limit to the Massachusetts Rule for dangerous dead trees and that under certain circumstances a landowner on whose property a dead tree stands may need to take reasonable steps to prevent injury to others.