So Whose Mango Is It Anyway?
Wednesday - September 14, 2005
Thy Neighbor is a blessing it cannot be denied,
Especially when his lychee tree hangs over on your side.
- poem by MidWeek‘s regional editor Carol Chang
Except in my case it’s mangos, and instead of my neighbor’s tree, the giant mango monstrosity that stands about 50 feet tall is firmly rooted in my front yard. Not only does it hang over onto my neighbor’s property, but part of the tree hangs over the street as well.
The tree’s visibility close to the road and brightly colored, round fruit (yes, they’re the good mangos, Haydens), year after year, prove to be a double-edged sword: yummy and juicy, but also a temptation for passersby.
Sometimes people ask before they grab; most times, however, they don’t.
I’ve come home to strangers up in the branches or standing tippy-toe in the street with their own pickers in hand.
Some are stealthy and run into the yard to take one of the fallen mangos from the ground or from the low-hanging branches. Others are polite and knock on our door first to ask, but then get greedy and take the opportunity to strip the tree bare, like the other day when two men asked Sebastian permission to pick, claiming they had their own picker, but two minutes later were climbing barefoot up in the tallest branches of the tree. Sebastian had to run outside and tell them to get down before someone got hurt.
Still others, the “mango activists” I like to call them, thinking they are well aware of their mango-picking rights, brazenly shout at me about how they are “well within their legal limits” to ravage the tree of whatever fruit they please.
I’ve learned there are a lot of mango-hungry people out there. People who are willing to go to great lengths to get their mitts on this tropical pleasure. What surprises me, however, is how rude people can be about claiming a few fruits for themselves.
This year has been worse than others I can remember, probably because we had an outstanding crop of mangos. It was the biggest harvest I can remember, and because of the tree’s immense height, many of the fruits were unreachable and ended up in our neighbor’s neatly kept yard or rolling down the hill at top speed, racing with cars, congregating in a giant pile where the road levels off.
Now, don’t get me wrong. My father and I are more than happy to share our bounty with others. But we have to first make sure our own family and friends get the fruit they need for chutneys, breads and general mango merriment before we can give away any to strangers. This means dividing up our crop among at least 30 people, maybe more.
Year after year, there are the same recurring issues. There are those who don’t ask, those who do ask but take too much, and those who are just plain rude and argue with me about their “legal rights.”
The first two kinds of mango pickers I can’t do much about except to scold them when I catch them. The third type, however, left me wondering just exactly what the random mango picker (and my) “legal rights” are.
“This issue comes up fairly often with respect to fruit trees,” says Derek Kobayashi, a partner at local law firm Goodsill Anderson Quinn & Stifel. “It’s more than you might think.”
Kobayashi, who also coordinates the firm’s pro bono activities (including this month’s Hawaii State Bar Association Young’ Lawyers Division Legal Line project from 6 to 7 p.m. every Wednesday, where Goodsill attorneys will dispense general legal information at 537-1868) explains that there’s not always a definitive rule, but there are some things to take into consideration.
“I haven’t seen anything that says you have a ‘right’to pick the fruit or harvest the plants of somebody else,” he says. “Say you had a prize-winning orchid or you’re a farmer and you have fruits that you’ve labored to produce. Does it all of a sudden become someone else’s property just because it hangs, accessible from a public area, over the property line? If you went fishing and your fish is still on the pole and the pole is against your fence but the fish is hanging over the fence, does that make the fish ‘public property’?”
Kobayashi says one could argue that the fact of the overhang doesn’t change the private nature of the value of the property to the property owner.
“What if, in the course of what this ‘picker’ is doing, he or she damages the tree or causes it not to be able to bear fruit?” says Kobayashi. “If the fruits are overhanging into what someone else would argue is public property, it doesn’t change the character of what I consider my private property.”
Furthermore, Kobayashi says, an argument could be made that a picker without permission has committed a trespass and has unlawfully appropriated property. “Just because you can gain access to it, doesn’t make it yours,” he says.
That being said, the property owner also has a responsibility. My family and I were nervous about letting other people pick the mangos just as a matter of safety. What if someone got up in the tree and hurt themselves? Or what if they were picking too close to the power line and got electrocuted? Would we be liable for their injuries?
Kobayashi says it’s a possibility. “In 1912 there was a case, Medeiros v. Honomu Sugar Company,” he says. “In that case it was decided that if there’s a tree on your property that could cause bodily harm to persons on a public highway, you have a duty to make sure you act reasonably and take steps to make sure that doesn’t happen.” Kobayashi adds that Hawaii law doesn’t treat people differently, whether they were an invitee, visitor or trespasser on your property with respect to the duty of care that landowner owes.
Short of putting up a giant fence around our mango tree or cutting it down completely, our best bet is probably to trim back the tree now that this year’s mango season is ending and continue to be cautious guardians of who comes onto our property to pick.
Sharing our fruit bounty with neighbors and friends is a local way of life.
But so is having respect for the property owners who have the right to protect their land, their well-being and - if need be - their mangos.
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