Oak Tree on Boundary therefore 2 owners

[arb culture]

On the other hand, the natural tree on one man's land encroaches with hair-thin roots which unabated thicken till their encroachment becomes nuisance. The law on this is clear, it doesn't start to be jointly owned when it grows up, it always has been one man's or the other's.

 

I think we are all agreed that where the base of a tree is in one persons land but the roots or branches cross into another then there is likely to be only one owner of a tree. The disagreement comes from what happens when the base of a tree straddles a boundary.

 

Some of us are under the impression that a tree with a base straddling a boundary has joint ownership, some think this is wrong and that there can be only one owner.

 

I've provided some citations (sourced from Charles Mynors book) to show that trees growing with a base that crosses a boundary have joint ownership.

 

I'd be absolutely delighted if someone could provide some case law or legislation that shows that this view is wrong (or even questionable).

 

I also wonder if Scottish and English law contain some differences on this matter.

[treequip]

Exploring the joint ownership option.

 

If the stem of my hypothetical tree has encroached on the neighbours by 25% how much of the ownership do they have?

 

If land is property it follows that they would have an interest 25%.

 

What happens if I decide to remove my 75%? The remainder of the tree is unlikely to be viable as a tree so what good is owning the 25% to anyone?

 

Similarly if the minority owner decides to remove his portion, they are free to do this and the position is eminently defendable under encroachment.

 

Discuss

[AA Teccie (Paul)]

Exploring the joint ownership option.

 

If the stem of my hypothetical tree has encroached on the neighbours by 25% how much of the ownership do they have?

 

If land is property it follows that they would have an interest 25%.

 

What happens if I decide to remove my 75%? The remainder of the tree is unlikely to be viable as a tree so what good is owning the 25% to anyone?

 

Similarly if the minority owner decides to remove his portion, they are free to do this and the position is eminently defendable under encroachment.

 

Discuss

 

I know this is 'hypothetical', and hence I'll doubtless come unstuck, but I thought the tree remained in the ownership, and ultimate responsibility, of the land upon which is was 'set' or planted.

 

In other words even if it encroaches the boundary at some later date, it still remained the responsibility of the landowner upon whose land it originated. I acknowledge in saying this it doesn't align with Charles's summation (hence simply ignore me ) but it does seem to make at least some sense...I would suggest.

 

In practice, one would hope adjoining land owners would sensibly discuss the matter and agree a solution.

 

There...time to go back to the main forum n seek out some H&S or compliance stuff now...PHEW!

 

Cheers..

Paul

[daltontrees]

I think we are all agreed that where the base of a tree is in one persons land but the roots or branches cross into another then there is likely to be only one owner of a tree. The disagreement comes from what happens when the base of a tree straddles a boundary.

 

Some of us are under the impression that a tree with a base straddling a boundary has joint ownership, some think this is wrong and that there can be only one owner.

 

I've provided some citations (sourced from Charles Mynors book) to show that trees growing with a base that crosses a boundary have joint ownership.

 

I'd be absolutely delighted if someone could provide some case law or legislation that shows that this view is wrong (or even questionable).

 

I also wonder if Scottish and English law contain some differences on this matter.

 

Just to be really really clear about this, if a tree is planted or an acorn allowed to grow even an inch inside one man's boundary, the whole tree is his property and his responsibility regardless of whether it comes later to straddle the boundary. The joint onwership (and I use that term in a loose sense for now, see below) only applies when a tree is ON the boundary (and it is assumed deliberately so and with the full knowledge, if not agreement, of both owners). There should never be a situation where ownership cedes to the encroached party in any proportion.

 

Your citations of Lemmon v Webb, Ricjardson v Jay and Heatherington v Gault support this. But I hope we can dismiss the myth of anyone becoming a part owner of a tree when it grows across a boundary. Trees have no legal rights, duties or will, and it must always come back to teh actions or teh inactions of the landowner on which the tree originated either by planting or being allowed to gernminate, establish and grow.

 

The terminology gets a little confusing. Lemmon v Webb, an english case, uses the term 'tenants in common' for the true boundary tree. Heatherington, a scottish case uses the term 'common property' for the same situation. Richardson uses 'owners ... in common'.

 

Then we have the question of whether one of the owners can cut the tree down the middle, and in so doing kill it. The law seems really clear on common property, one owner cannot cut the tree down without the other owner's permission, as this would destroy the subject of the 'tenancy in common'.

He can remove parts of it on his own side though. In Richardson the judge 'did not know' whether one owner could cut the tree in half longitudinally. The matter remains untested and unresolved.

 

My instinct (so don't quote me on it) is that cutting the tree down the middle and inevitably killing the tree in the process would amount to abuse of common ownership since it also destroys the subject of 'tenancy in common'. But here's where my scots law knowledge may not be entirely transferrable to england. We have what is known as 'constructive total destruction' which means something damaged so badly that it might as well be considered in law as totally destroyed. Whehter that amounts to english 'ouster' in tree cases is beyond me. But again just falling back on instinct and the actions of reasonable people, I am fairly sure that anyone destroying his half of common property and in so doing setroying teh other man's half is depriving that man. Call it theft, call it what you may, but it cannot be right.

[David Humphries]

Exploring the joint ownership option.

 

If the stem of my hypothetical tree has encroached on the neighbours by 25% how much of the ownership do they have?

 

If land is property it follows that they would have an interest 25%.

 

What happens if I decide to remove my 75%? The remainder of the tree is unlikely to be viable as a tree so what good is owning the 25% to anyone?

 

Similarly if the minority owner decides to remove his portion, they are free to do this and the position is eminently defendable under encroachment.

 

Discuss

 

 

Perhaps this may depend on whether the hypothetical tree is whole or segmented ?

 

If 25% of the encroaching tree was 'autonomous' from its original whole, then it could be debated that the 25% (root, butress, trunk portion, part canopy) is a singular asset of its adopted owner

 

 

.

[daltontrees]

Exploring the joint ownership option.

 

If the stem of my hypothetical tree has encroached on the neighbours by 25% how much of the ownership do they have?

 

If land is property it follows that they would have an interest 25%.

 

What happens if I decide to remove my 75%? The remainder of the tree is unlikely to be viable as a tree so what good is owning the 25% to anyone?

 

Similarly if the minority owner decides to remove his portion, they are free to do this and the position is eminently defendable under encroachment.

 

Discuss

 

AS posted a few minutes ago, I am sure there is no such thing as apportioned ownership, it is either one person's or it is common, and in the latter case as a result of agreement. There can be no 'minority owner'. I for one am therefore not going to even try and discuss.

[daltontrees]

Perhaps this may depend on whether the hypothetical tree is whole or segmented ?

 

If 25% of the encroaching tree was 'autonomous' from its original whole, then it could be debated that the 25% (root, butress, trunk portion, part canopy) is a singular asset of its adopted owner

 

[ATTACH]158067[/ATTACH].

 

The exception that proves the rule. If this happens the segmented tree on the 'adopted owner''s land is an encroachment and just like any other tree encroachment that owner can tolerate it or remove it at his will.

 

But if you consider the situation to be like an acorn falling across a fence, that is not encroachment if the owner there allows it to grow. He owns it all as it is the produce of his soil. That's my view anyway. I may be wrong as I haven't had my mid-morning caffeine blast yet and may be letting fancuful notions of arboriculture block the path of Okkam's Razor.

[daltontrees]

I know this is 'hypothetical', and hence I'll doubtless come unstuck, but I thought the tree remained in the ownership, and ultimate responsibility, of the land upon which is was 'set' or planted.

 

In other words even if it encroaches the boundary at some later date, it still remained the responsibility of the landowner upon whose land it originated. I acknowledge in saying this it doesn't align with Charles's summation (hence simply ignore me ) but it does seem to make at least some sense...I would suggest.

 

In practice, one would hope adjoining land owners would sensibly discuss the matter and agree a solution.

 

There...time to go back to the main forum n seek out some H&S or compliance stuff now...PHEW!

 

Cheers..

Paul

 

I woudl agree with you. Not on the HS stuff, that's ALL yours.

[arb culture]

I know this is 'hypothetical', and hence I'll doubtless come unstuck, but I thought the tree remained in the ownership, and ultimate responsibility, of the land upon which is was 'set' or planted.

 

In other words even if it encroaches the boundary at some later date, it still remained the responsibility of the landowner upon whose land it originated. I acknowledge in saying this it doesn't align with Charles's summation (hence simply ignore me ) but it does seem to make at least some sense...I would suggest.

 

In practice, one would hope adjoining land owners would sensibly discuss the matter and agree a solution.

 

There...time to go back to the main forum n seek out some H&S or compliance stuff now...PHEW!

 

Cheers..

Paul

 

Hi Paul,

 

I totally agree with your logic - and I always thought similar.

 

But then why does Mynors seem to say something different and far more complex? Have we misunderstood him?

 

Weird - and perhaps one for the lawyers I think.

 

I'm going back to looking at trees now.

[AA Teccie (Paul)]

Hi Paul,

 

I totally agree with your logic - and I always thought similar.

 

But then why does Mynors seem to say something different and far more complex? Have we misunderstood him?

 

Weird - and perhaps one for the lawyers I think.

 

I'm going back to looking at trees now.

 

Perhaps because he is a lawyer...dunno

 

For me, where did I put that vibration risk assessment document

 

Cheers..

Paul