Oak Tree on Boundary therefore 2 owners

[daltontrees]

Perhaps because he is a lawyer...dunno

 

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

 

Cheers..

Paul

 

I'm not seeing where Mynors is ambiguous. There are 2 scenarios, single and common ownership. The law on them is different but fairly established and quite clear. It's not about trees, it'sa bout peope, as the law always is. Someone owns every tree, it's their rights and duties regarding that tree that define the law. And if there is agreement to jointly own a tree, the law of contract or quasi-contract comes into play, filling in the blanks in a vague agreement or contract, perhaps an unwritten one.

[Gary Prentice]

I'm not seeing where Mynors is ambiguous. There are 2 scenarios, single and common ownership. The law on them is different but fairly established and quite clear. It's not about trees, it'sa bout peope, as the law always is. Someone owns every tree, it's their rights and duties regarding that tree that define the law. And if there is agreement to jointly own a tree, the law of contract or quasi-contract comes into play, filling in the blanks in a vague agreement or contract, perhaps an unwritten one.

 

I'd agree with your summation. I think Mynor's is quite clear, one owner - one set of rules. Joint ownership- another set entirely.

[arb culture]

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.

 

Do they?

 

That's cool - but where? I can't find the bits that support your assertion.

[10 Bears]

Any citations for that?

 

There does seem to be a lot of confusion about the core issue ie who owns the tree. I refer back to my earlier post which basically says the deeds to the property are the key to unlocking this problem. This situation is reviewed by a LPA here under 'Determine Ownership' and in slightly more detail in APN 11 here under 'Who's Tree is it?'

 

You simply cant get away from the fact that trees, or any growing plant in fact, are the legal property of someone, and as such are subject to the ordinary laws of property. In this case, trees are considered 'land property' ie if you own the land around the roots of the tree - you own that part of the tree. If parts of the tree are removed e.g. chop off a branch - it is still owned by someone as you know, but now this is considered as private property, akin to a mobile phone or similar.

 

Comments about if I fell my 75% and it kills your 25% are obviously theoretical (as most of this thread has been!), however, if this were the case then it would give the aggrieved the right to pursue arbitration (again as mentioned in an earlier post). This issue would be to determine whether or not actus non facit reum nisi mens sit rea (otherwise referred to as mens rea) was a factor in your choice to fell your 75% - did you kill his 25% intentionally?

 

Other observations about where the acorn falls are distracting as I believe their use to be a somewhat incorrect but often perpetuated interpretation of the law. It is long held that plants belong to the owner of the soil as stated previously (see Roman Law at d.41.1.7.13) and it is both common to both English and Scots Law (see A History of English Law by Holdsworth and Scottish Land Law by Gordon - Sorry, I have access to these books, but couldn't find E-book versions to post here).

 

I'm going on a bit now, so I will stop here for a rest while I prepare for some flak!

 

One final point to recognise though - we are all armchair experts with our individual interpretations of a complex subject matter. Ultimately though, it doesn't matter how we read all this information, the final opinion that counts is that of the arbitrator who makes a final judgement on any arising dispute!

[10 Bears]

Hello Ed,

 

I am reading it correctly - particularly in reference to my comments about deeds (which are the absolute final say about where the boundary lies), and ultimately going through arbitration i.e. court, which I have already raised in a couple of posts on this thread.

 

If you read my post above and follow the links I provide - you will see that the founding legal principal of tree/plant ownership is who owns the soil around the roots. This tenet goes as far back as when Roman law was in affect in this country.

 

To quote one of the 3 books on the subject that I have immediately to hand, "the proposition that plants growing in the soil belong to the owner of the soil appears to be such a basic idea that it is more or less taken for granted, and any discussion and dispute has centred on its application between those holding different interests in the land" (CT Reid, Nature Conservation Law, 6.1.2, P268). The other two references, Mynors and Neighbours and the Law by Pugh-Smith et al, also say the same.

 

Ultimately, if a judgement is made in court, and decree made that ownership is in common you may argue your case that consent would be needed by each owner to trim the hedge etc - but this does not pass another founding principle of law, ie the test of reasonableness, meaning that this would be unreasonable. You should also remember De minimis non curat lex - the law takes no notice of trifles.

 

Applied to your example, if you and I had a ownership in common, and I trimmed my side without asking your permission there would be no legal case to answer as I have taken the actions of a reasonable man, and there is no Mens rea on my behalf ie that I am not acting with a guilty mind and trying to damage your property - I am only looking to maintain my property. Do you see the difference?

 

Now, to retire to my armchair...

[kevinjohnsonmbe]

Hello Ed,

 

I am reading it correctly - particularly in reference to my comments about deeds (which are the absolute final say about where the boundary lies), and ultimately going through arbitration i.e. court, which I have already raised in a couple of posts on this thread.

 

If you read my post above and follow the links I provide - you will see that the founding legal principal of tree/plant ownership is who owns the soil around the roots. This tenet goes as far back as when Roman law was in affect in this country.

 

To quote one of the 3 books on the subject that I have immediately to hand, "the proposition that plants growing in the soil belong to the owner of the soil appears to be such a basic idea that it is more or less taken for granted, and any discussion and dispute has centred on its application between those holding different interests in the land" (CT Reid, Nature Conservation Law, 6.1.2, P268). The other two references, Mynors and Neighbours and the Law by Pugh-Smith et al, also say the same.

 

Ultimately, if a judgement is made in court, and decree made that ownership is in common you may argue your case that consent would be needed by each owner to trim the hedge etc - but this does not pass another founding principle of law, ie the test of reasonableness, meaning that this would be unreasonable. You should also remember De minimis non curat lex - the law takes no notice of trifles.

 

Applied to your example, if you and I had a ownership in common, and I trimmed my side without asking your permission there would be no legal case to answer as I have taken the actions of a reasonable man, and there is no Mens rea on my behalf ie that I am not acting with a guilty mind and trying to damage your property - I am only looking to maintain my property. Do you see the difference?

 

Now, to retire to my armchair...

 

 

I'm thinking along similar lines to Ed (above) but acknowledge your points in law & references.

 

Reasonableness is perhaps where the "hedge" example used above falls over. Would it not be perfectly reasonable for 2 parties to independently trim their respective faces & top of a hedge that is jointly owned (maybe crossing the centre line could be a mute point if the parties were in conflict!)

 

Similarly (reasonable) trimming - a particular branch or branch tips of a jointly owner tree might be reasonable. Whereas cutting back so far as to significantly alter the shape / form or adversely affect long term viability might not be considered reasonable and an infringement upon the other parties rights as a joint owner.

[arb culture]

There does seem to be a lot of confusion about the core issue ie who owns the tree. I refer back to my earlier post which basically says the deeds to the property are the key to unlocking this problem. This situation is reviewed by a LPA here under 'Determine Ownership' and in slightly more detail in APN 11 here under 'Who's Tree is it?'

 

You simply cant get away from the fact that trees, or any growing plant in fact, are the legal property of someone, and as such are subject to the ordinary laws of property. In this case, trees are considered 'land property' ie if you own the land around the roots of the tree - you own that part of the tree. If parts of the tree are removed e.g. chop off a branch - it is still owned by someone as you know, but now this is considered as private property, akin to a mobile phone or similar.

 

Comments about if I fell my 75% and it kills your 25% are obviously theoretical (as most of this thread has been!), however, if this were the case then it would give the aggrieved the right to pursue arbitration (again as mentioned in an earlier post). This issue would be to determine whether or not actus non facit reum nisi mens sit rea (otherwise referred to as mens rea) was a factor in your choice to fell your 75% - did you kill his 25% intentionally?

 

Other observations about where the acorn falls are distracting as I believe their use to be a somewhat incorrect but often perpetuated interpretation of the law. It is long held that plants belong to the owner of the soil as stated previously (see Roman Law at d.41.1.7.13) and it is both common to both English and Scots Law (see A History of English Law by Holdsworth and Scottish Land Law by Gordon - Sorry, I have access to these books, but couldn't find E-book versions to post here).

 

I'm going on a bit now, so I will stop here for a rest while I prepare for some flak!

 

One final point to recognise though - we are all armchair experts with our individual interpretations of a complex subject matter. Ultimately though, it doesn't matter how we read all this information, the final opinion that counts is that of the arbitrator who makes a final judgement on any arising dispute!

 

What a great post - thanks 10 bears.

 

I think I am now finally comfortable on the matter of boundary trees and the reasons why there is such confusion and misinformation about the matter.

 

I'm grateful to you for bothering to post in such detail, with references, and with clarity.

 

Cheers

[10 Bears]

Whereas cutting back so far as to significantly alter the shape / form or adversely affect long term viability might not be considered reasonable and an infringement upon the other parties rights as a joint owner.

 

Yes, absolutely. This is my reading of all the literature regarding this, and is no doubt exactly the issue when it is raised in court ie he chopped off my branch and I didn't want him to. This wouldn't be reasonable and would infringe on the aggrieved parties rights.

 

If you think about it, this situation is the basis for the majority of all over-the-fence-arguments ie my perspective is X, yours is Z and we don't agree on Y because you are wrong or you are being unreasonable!

 

Again ultimately it is down the the arbitrator to make the final decision in any case should it come to it, but us chaps on here discussing the finer points of boundary law is actually a good thing in my opinion, and it may help us all inform our respective clients with a greater degree of authority then was taught by certain colleges way back when!

 

Knowledge and law, are not static, they are dynamic beasts and we need to all do our best to keep up with subsequent developments.

 

(Oh no. Am I starting a thread on maintaining CPD now???)

Edited June 4, 2014 by 10 Bears

[10 Bears]

What a great post - thanks 10 bears.

 

I think I am now finally comfortable on the matter of boundary trees and the reasons why there is such confusion and misinformation about the matter.

 

I'm grateful to you for bothering to post in such detail, with references, and with clarity.

 

Cheers

 

You're welcome! Genuinely glad my ramblings have helped someone...

[10 Bears]

Hello Ed,

 

Any comments here on are assuming that 3.2.3 of my 2002 edition, refers to the same as your 2011 edition ~ and is entitled Fruit and Leaves. If not, then some of this may be out of context, but I have a feeling that this is the section you refer to...

 

So, if this is the case - I feel (my opinion only of course) that you are reading this situation out of context or at least misinterpreting Mynors and not understanding the significance of other points raised earlier. Ill explain further, but if we don't agree - then so be it, as I'm sure neither of us are Judges!

 

You simply cant get away from the fact that trees, or any growing plant in fact, are the legal property of someone, and as such are subject to the ordinary laws of property. In this case, trees are considered 'land property' ie if you own the land around the roots of the tree - you own that part of the tree. If parts of the tree are removed e.g. chop off a branch - it is still owned by someone as you know, but now this is considered as private property, akin to a mobile phone or similar.

 

The comment here about chopped branches being private property is directly in reference to the information referred to in my copy of Mynors, ie boundary > fruit > belongs to owner of branch > whether in your airspace or not. While the tree is in the ground, it is land property, the same as your house, but when anything is severed, windblown, etc. it is no longer land property, but in legal terms, becomes private property i.e. like a mobile phone that you could place on a table and leave the room, but just because it has become separated from you - does not mean that it is no longer yours, and gives no-one the right to pick it up and take it away. This is the meaning and context of the section at 3.2.3 (my copy!) where Mynors refers to the "branch belongs to the owner of the tree, not the owner of the airspace which it is overhanging".

 

The bottom line is this, all of the tree belongs to the person on whose land it was planted, (or seeded).

Yes it does. I have covered this principle at length at http://arbtalk.co.uk/forum/trees-law/74382-oak-tree-boundary-therefore-2-owners-7.html#post1120495 here it is stated that if you own the land around the soil - you own the tree. This is an ancient legal tenet (Roman) and is held both on statute and in common law in England (Wales) and Scotland. I think your interpretation of this is that if you plant a tree on your side it remains 100% yours in perpetuity. This is not the case regarding most natural things as nature doesn't know where man has drawn the boundary; 'be aware the quiet onset of nature'. Should a tree grow over the boundary and become defective, then both the owners of the land are responsible for the trees upkeep/maintenance under their duties as prescribed by the occupiers liability act. Should the tree fail into the carriageway for instance, and it has uprooted from both properties - then both parties will be liable. So, in this case, if the tree crosses the boundary so does liability/ownership as evidenced by my comments about deeds/ownership in the link above.

 

I read in to your post, this interpretation of your view of ownership/common ownership, because you also mention encroachment in particular:

None of it belongs to the person over whose land it merely encroaches.

Do you know, I agree with this as well, but the context that you are trying to apply this principle is referring to the wrong situation. Encroachment is the passage of roots or branches from one property to another only where an 'actionable nuisance' is occurring, ie person A's property is being damaged by person B's tree by the encroachment of aforementioned roots/branches.

 

Ed, this review is not a personal attack - so please don't view it as such. In my opinion, you have a handle on some of the key issues certainly, its just they appear to be applied in a slightly skewed context or of course 3.2.3 in the 2011 book refers to an entirely different section and I have just lost 15 minutes of my life!