Abbinett v. Fox

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…