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My Neighbor’s Tree Is
Offending Me! Can I
Get Out The Ax?
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I think that I shall never see
A poem lovely as a tree.
A tree whose hungry mouth is prest
Against the earth’s sweet flowing breast;
A tree that looks at God all day,
And lifts her leafy arms to pray;
A tree that may in Summer wear
A nest of robins in her hair;
Upon whose bosom snow has lain;
Who intimately lives with rain.
Poems are made by fools like me,
But only God can make a tree.
Trees, by Joyce Kilmer
So your neighbor has trees. Large trees. Large trees
with offending branches and roots. Your local fire department is considering
citing you because the branches of this offending tree are perilously
close to your chimney. You notice one day that your cement driveway
appears to be uplifting at one point and your gardener points out the
cause which is, of course, a root of your neighbor’s tree.
What are your remedies?
Well before you reach for the ax and menacingly march
toward your neighbor’s property, consider approaching your neighbor
and softly apprizing him of the situation. Most neighbors prefer to
be "neighborly" and will work with you to find a common acceptable
solution.
There are, however, other types of neighbors.
This article deals with the "other kind."
It has been established that you cannot unilaterally
enter on your neighbor’s property and cut down the tree; if you
do, you will be liable in damages for trespass. It has, however, been
held that an aggrieved owner may cut off the offending branches or roots
at the boundary.
In a San Mateo County case which so held, the offending
tree was a white oak tree about 50 or 60 feet tall with a trunk about
four feet in circumference. Three of the tree’s main limbs extended
about 25 feet over, and about 40 feet above, the complaining owner’s
property. The court reports as follows:
"About 5 o’clock in the morning of September
2, 1950, a large limb broke loose from the tree, smashing through plaintiffs’
garage and smashed a section of the fence. Defendant . . . when asked
what he was going to do about the damage stated that it was not his
responsibility . . . . There was a continual dropping of smaller branches
on the roof, driveway and patio. One small branch almost hit plaintiff
while he was standing in the middle of his driveway. It was almost a
daily chore to clean the debris from the tree. The noise of the dropping
of the smaller branches on the roof constantly reminds plaintiff of
the danger. During the rainy season it is a two-hour job every Sunday
to clear the gutters and drain spouts of the debris from the tree. Plaintiffs
are afraid of the overhanging limbs and because of them are afraid to
leave their baby out on the patio. The debris requires plaintiff to
sweep the patio and driveway daily and rake the lawn before mowing it."
When the owner of the tree was told that plaintiffs
desired to cut back the tree to the property line, he warned "that
if plaintiffs had it cut back and damaged the tree in any way, [he]
would sue plaintiffs."
In this situation, it was apparently necessary to seek
judicial relief and the court in fact did order the defendant to abate
the nuisance, which is a judicial, euphemistic way of saying "cut
back the damn tree!"
What if adjoining landowners maintain a hedge or a
line of trees on their boundary as a shelter or a windbreak and one
owner attempts to cut down the trees or remove overhanging limbs so
as to deprive the other of shelter?
In a San Bernardino County case, the plaintiff and
defendants were owners of adjoining citrus orchards. On the boundary
line between the two properties, there was a row of tall eucalyptus
trees, grown for the purpose of protecting plaintiff’s orchard
from damage by annually recurring high winds.
The defendants had apparently pruned the trees in such
a manner as to leave large holes or openings in the hedge or "windbreak"
so as to permit the free passage of damaging winds. In this matter,
the plaintiff was successful in obtaining an injunction against the
defendant’s pruning activity.
The moral of the story? Trees over time generally grow
up, and the roots and branches expand. That is the nature of trees.
The nature of neighbors? Doesn’t everyone have a "tree story"
of some kind?
[This column is intended to provide general information
only and is not intended to provide specific legal advice; if you have
a specific question regarding the law, you should contact an attorney
of your choice. Suggestions for topics to be discussed in this column
are welcome.]
Reprinted from New Era Magazine
Myles M. Mattenson © 2001-2002
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