One tree, on two properties...

[Daniël Bos]

I'm currently clearing scrub along a boundary line.

The client's side is pasture, it neighbours a woodland. The client being a farmer, they've moved their fenceline every ten years or so (or whenever it needed repair/replacement) rather than cutting back the encroaching wood, leading to a 10-15m scrub zone that looks like it's part of the woodland, but was originally pasture.

 

I find this is quite a common practice, though not to such extremes!

 

Anyway, the neighbour came up angry at me, we had a "why are you killing my trees? - I'm not, they're not your trees - yes they are part of my wood, etc etc" conversation. I let him sort it out with the client who could easily and convincingly show where the actual property ends. (I'd have not got involved had I not been convinced).

 

Now, with the boundaries established I crack on but came across the following:

A blackthorn -on my clients property- blew over onto the neighbours', it rooted where it landed and continued to grow.

Now the tree has two root systems, one on each property, with about 2-3m between. the top and with it most of the growth is on the neighbours' land.

 

Who owns the tree?

[Mark Bolam]

Who cares?

Clear to the boundary line and get paid.

 

I’m not being flippant, but legally educated people argue over stuff like this for months and still don’t really know.

 

[Daniël Bos]

2 minutes ago, Mark Bolam said:

Who cares?

Clear to the boundary line and get paid.

 

I’m not being flippant, but legally educated people argue over stuff like this for months and still don’t really know.

 

Ha!

 

I reckon I'll do just that, but there's a bit of me not 100% comfortable. 

I guess I'm just so used to always being right now i'm no longer married that the chance of being in the wrong is frankly terrifying?

 

On a serious note, houses in this street average over £2million, a boundary line moved a foot equals more money than I earn in a year and they're all of the sort what love lawyers 'round 'ere! (and not in the wanting to cuddle a cutey qc way  either)

If there is an answer, I wanna know it. 

 

[Mark Bolam]

I get that mate, totally.

I suppose having a friendly and reasonable discussion with the neighbour leading to a satisfactory conclusion for all parties is out of the question?

 

Please don’t accuse me of being thick, or naive.

I am both.

[AHPP]

Who cares?

Clear to the boundary line and get paid.

 

I’m not being flippant, but legally educated people argue over stuff like this for months and still don’t really know.

 

I’m a legally educated person and I completely agree.

[Rupe]

If it really rooted over the boundary line then it might survive? Cut off whats on your clients side and leave it to it.

[Gary Prentice]

If it hadn’t rooted and was just growing over the boundary, no-one would argue that the neighbour had aquired ownership of the part over his land. 

 

But, if it’s rooted on his land, does he then acquire ownership of what’s growing from the roots on  his land? I would think yes.

 

if you cut to the boundary and what’s on the other side survives, then I imagine that has become his tree. If it dies, then it hadn’t become a self sufficient, independent organism and was still your clients tree.

 

Another option would be to ask your client what he wants you to do about and let him make the decisions  

 

Just my opinion...

[Rough Hewn]

If you cut the tree 1" on the neighbours side, your client is liable.
Happened to me a couple of years ago.
Sycamores overhanging into a car park, cut back to fence line, up to 20' high.
We cut several 1-2" branches over the fence line by 1".
20 bloody feet off the ground!
Next thing we hear from client is neighbours taking him to court.
Still got paid, never heard the outcome.
Still do trees for client.
[emoji15]

[daltontrees]

3 hours ago, Rough Hewn said:

If you cut the tree 1" on the neighbours side, your client is liable.
Happened to me a couple of years ago.
Sycamores overhanging into a car park, cut back to fence line, up to 20' high.
We cut several 1-2" branches over the fence line by 1".
20 bloody feet off the ground!
Next thing we hear from client is neighbours taking him to court.
Still got paid, never heard the outcome.
Still do trees for client.

Strictly speaking the client is liable (or you, if you didn't adhere to the spec), but in practice what is the measure of the neighbour's loss? This sort of pettiness has existed since the beginnign of time, at least long enough for the romans to have a phrase for it De minimis non curat lex, the law does not concern itself with trivialities. This is still alive and well as a firm principle of common law. Even if the neighbour was allowed to petition the court, the award of damages would be too small (de minimis) to award and the court would probably not award costs either, due to wasting the courts' time with childish nonsense.

[daltontrees]

10 hours ago, Gary Prentice said:

If it hadn’t rooted and was just growing over the boundary, no-one would argue that the neighbour had aquired ownership of the part over his land. 

 

 

I'd argue with that. It's an encroachment that the neighbour could self-abate, or if it was actionable could insist on it being removed.