Problem with next doors tree, advice required, thanks

[difflock]

small yellow fruit and visually looks like a plum bush=greengage perhaps?

[daltontrees]

14 hours ago, AHPP said:

Do you mean time immemorial, i.e. 1189? What's the earliest caselaw that accepts it as the law?

Ahh well it depends where you are. The law in Scotland is much clearer in origin since the frist case law clearly stating the right to cut back is 1781, predating the english equivalent by about 120 years. Scots Law is based on Roman Law, and the right to cut back was enshrined in the Twelve Tables of Roman Law (a sort of codified law which was literlally carved in stone and built into a wall in the centre of Rome so that all citizens could see and know it). The Tables date from about 500 BC and are codifying existing comon law, so the law predates that. LAt's say reliably about 3000 years at least.  The 1781 decision references an authoritative text in the 16th century about the codification of Roman Law in the 6th century, which in turn is known to be derived from the Tables.

English law is based mostly on medieval law, which is a sort of mongrel mix of Norman, Germanic and indigenous. The first clear mention of the right to cut back with complete impunity is in the celebrated cases of Lemmon v Webb 1894 and 1895. But please note, that case did not decide the law, it was only a case about whether notice of intention to exercise the right was needed. The judge essentially says the right to cut back is a given, coming within the "exercise of rights in a class of cases which has existed as long as the growth of trees and boundaries between neighbours have existed".

In booth countries the law predates 1189. In Scotland, definitely since 500 BC and probably long before that. In England, since the dawn of time, or since the dawn of propery boundaries.  

Case law only settles dubities in the law. In both juristictions there has never been doubt that needed tested. Except on one fine point in Scots Law, which I will further bore you with if you are interested, but which has no bearing on your question.

[AHPP]

1 hour ago, daltontrees said:

Ahh well it depends where you are. The law in Scotland is much clearer in origin since the frist case law clearly stating the right to cut back is 1781, predating the english equivalent by about 120 years. Scots Law is based on Roman Law, and the right to cut back was enshrined in the Twelve Tables of Roman Law (a sort of codified law which was literlally carved in stone and built into a wall in the centre of Rome so that all citizens could see and know it). The Tables date from about 500 BC and are codifying existing comon law, so the law predates that. LAt's say reliably about 3000 years at least.  The 1781 decision references an authoritative text in the 16th century about the codification of Roman Law in the 6th century, which in turn is known to be derived from the Tables.

English law is based mostly on medieval law, which is a sort of mongrel mix of Norman, Germanic and indigenous. The first clear mention of the right to cut back with complete impunity is in the celebrated cases of Lemmon v Webb 1894 and 1895. But please note, that case did not decide the law, it was only a case about whether notice of intention to exercise the right was needed. The judge essentially says the right to cut back is a given, coming within the "exercise of rights in a class of cases which has existed as long as the growth of trees and boundaries between neighbours have existed".

In booth countries the law predates 1189. In Scotland, definitely since 500 BC and probably long before that. In England, since the dawn of time, or since the dawn of propery boundaries.  

Case law only settles dubities in the law. In both juristictions there has never been doubt that needed tested. Except on one fine point in Scots Law, which I will further bore you with if you are interested, but which has no bearing on your question.

Thanks. Bore me as much as much as you like. I have a reasonable feel for English law but know very little about Scots. Anything will help get my eye in.

[john87]

On 10/09/2022 at 12:39, daltontrees said:

Ahh well it depends where you are. The law in Scotland is much clearer in origin since the frist case law clearly stating the right to cut back is 1781, predating the english equivalent by about 120 years. Scots Law is based on Roman Law, and the right to cut back was enshrined in the Twelve Tables of Roman Law (a sort of codified law which was literlally carved in stone and built into a wall in the centre of Rome so that all citizens could see and know it). The Tables date from about 500 BC and are codifying existing comon law, so the law predates that. LAt's say reliably about 3000 years at least.  The 1781 decision references an authoritative text in the 16th century about the codification of Roman Law in the 6th century, which in turn is known to be derived from the Tables.

English law is based mostly on medieval law, which is a sort of mongrel mix of Norman, Germanic and indigenous. The first clear mention of the right to cut back with complete impunity is in the celebrated cases of Lemmon v Webb 1894 and 1895. But please note, that case did not decide the law, it was only a case about whether notice of intention to exercise the right was needed. The judge essentially says the right to cut back is a given, coming within the "exercise of rights in a class of cases which has existed as long as the growth of trees and boundaries between neighbours have existed".

In booth countries the law predates 1189. In Scotland, definitely since 500 BC and probably long before that. In England, since the dawn of time, or since the dawn of propery boundaries.  

Case law only settles dubities in the law. In both juristictions there has never been doubt that needed tested. Except on one fine point in Scots Law, which I will further bore you with if you are interested, but which has no bearing on your question.

 

Yes, bore on!! All very interesting stuff!!

 

john..

[daltontrees]

There's not much to add. First a correction -  the twelve tablets were carved in wood, not stone, then fixed to a  wall. Unfortunately all that survives of them is a few quotes from them in later roman legal cases or writing.

 

Roman property was classed as either urban or rustic, depending on whether they related to buildings or agricuture. I genuinely don't know whether the right to cut back to a boundary applies to both but it has been suggested that urban owners were obliged to keep their trees pruned back to a height of 15 feet. This may not have been so important in the rustic context, and there may have been a different rule.

There was a system of penalties which were quite elaborate. But I think the most elaborate roman punishment of all, reserved for killing your father or a close family member, was to be sewn into a leather sack with a monkey, a cock, a viper and a dog, and thrown in the sea. Permanently. Yes, they did this. But even the romans must have thought this too elaborate (or maybe monkeys were getting hard to come by in the distant corners of the empire), and later (4th century) softened a bit and preplaced this punishment with being burned alive. 

And people these day bleat about human rights when somebody says boo to them!

 

And back to the original point, as I have said people (and tree people in particular) seem to be unhappy to state the law unless ther has been a specific tree case in almost indentical circumstance to their own, but good law, tee best law, has no case law because it is so clearly understood, so innately fair and so easily applied that it needs never to come to court. I would encourage anyone not to start with case law but to understand the general principles of natural rights in property, negligence and nuisance. From these stem everything. Land ownership is from the centre of the earth to the top of the sky. Encroaching branches prevent you using your property, so that is nuusance, and if damage is done by it, that is negligence. Everything else is fine detail.

[AHPP]

On 10/09/2022 at 12:39, daltontrees said:

 

Case law only settles dubities in the law. In both juristictions there has never been doubt that needed tested. Except on one fine point in Scots Law, which I will further bore you with if you are interested, but which has no bearing on your question.

What was the little Scots bit?

[daltontrees]

48 minutes ago, AHPP said:

What was the little Scots bit?

Only that I wasn't sure whether roman law treated urban and rustic trees the same in terms of rights to cut back.

[AHPP]

47 minutes ago, daltontrees said:

Only that I wasn't sure whether roman law treated urban and rustic trees the same in terms of rights to cut back.

I see. I’m curious how you would go about finding out? My first enquiry would be Sturges v Bridgman AND some Roman or civic system keyword into a database and hope for a journal article. 

[daltontrees]

8 minutes ago, AHPP said:

I see. I’m curious how you would go about finding out? My first enquiry would be Sturges v Bridgman AND some Roman or civic system keyword into a database and hope for a journal article. 

I don't see what Sturges has to do with it, it related to moving to a nuisance and whether the source of nuisance could say that the neighbour had thereby forgone the right to prevent the nuisance. Which of course he hasn't. That in itself is consistent (but for slightly different reasons) with Lemmon v Webb which said the nuisance never gains prescriptive right to be continued.

And is Sturges not an english case anyway? There are still some significant differences between scots and english law on liability, which without doubt originate from differences between roman and medieval law.

Are you really interested in whether scots law and the right to abate nuisance is founded in rustic or urban roman law? That's quite a subtle distinction to be making. As it happens, the court of session over-rode the roman law on the basis that in italy the shade from trees is probably a good thing but in scotland it's not. In making the distinction it relied on a french institutional writer. We're gettign in pretty deep here, and wheras I love all this stuff I am curoius why you want to know, or if this is in fact what you wnat to know.

[DaveKil]

20 minutes ago, daltontrees said:

I don't see what Sturges has to do with it, it related to moving to a nuisance and whether the source of nuisance could say that the neighbour had thereby forgone the right to prevent the nuisance. Which of course he hasn't. That in itself is consistent (but for slightly different reasons) with Lemmon v Webb which said the nuisance never gains prescriptive right to be continued.

And is Sturges not an english case anyway? There are still some significant differences between scots and english law on liability, which without doubt originate from differences between roman and medieval law.

Are you really interested in whether scots law and the right to abate nuisance is founded in rustic or urban roman law? That's quite a subtle distinction to be making. As it happens, the court of session over-rode the roman law on the basis that in italy the shade from trees is probably a good thing but in scotland it's not. In making the distinction it relied on a french institutional writer. We're gettign in pretty deep here, and wheras I love all this stuff I am curoius why you want to know, or if this is in fact what you wnat to know.

This is all waffle mate. If you really understood the relevant Law you could have answered this guy's questions in one or two sentences. You might impress laymen who haven't read Law, but to someone who has you come across as an unhelpful showman.