Oak Tree on Boundary therefore 2 owners

[daltontrees]

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.

 

 

|I think you are getting quic quid plantature est solo cedit and a caelo usque ad centrum mixed up.

[daltontrees]

Sorry 10 Bears, equally I have no interest in personal atacks but I really continue to disagree on your interpretation.

 

Firstly a party onto whole land roots and branches encroach is never responsible for its subsequent failure and harming of a third party. The only tne exception to that is if he has gone out of his way to cause it to fail to spite the owner of the tree.

 

Secondly roots and branches movig into someone's airspace or soil is de facto encroachment. It happens all the time, almost everywhere. It is only an actionable nuisance when (i) it is a nuisance which in the legal sense is interfering with someones peacable enjoyment of their property and (ii) is actionable that is to say in this context serious enough to merit legal action that the courts would recognise as not de minimus and could pronounce upon.

 

I am only persevering here becasue I would hate you or anyone else to leave this thread in misapprenension and worse still wrongly advise others and get in bother over it.

[daltontrees]

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?

 

I wouldn't read too much into mens rea in the tree context, it is a criminal law matter, not a civil one.

[10 Bears]

|I think you are getting quic quid plantature est solo cedit and a caelo usque ad centrum mixed up.

 

No, not entirely though I am aware of these principles. My interpretation of this comes from reading (or is that Reiding?) - Reid: Nature Conservation Law.

[10 Bears]

Firstly a party onto whole land roots and branches encroach is never responsible for its subsequent failure and harming of a third party. The only tne exception to that is if he has gone out of his way to cause it to fail to spite the owner of the tree.

 

I should have explained this further, but was looking for a quick example (I am trying to get some work completed today - Honest!).

 

I was thinking of a situation over a longer time-scale, the actual amount of time is irrelevant, but if you have taken on the management/care of your 'half' of a tree that was not originally yours/on your property, then due to OLA/DoC and the acts of a reasonable man in law (as a layman not knowing what the fungi is is one thing, but ignoring the fact the tree is obviously dying and is colonised with fungi throughout the base, lumps are falling off and subsequently doing nothing about it), then yes, liability would pass to the occupier of both bits of land.

 

I am going to finish my work and turn this off for a while, but there is definitely a section on this in my copy of Mynors. If needed I will raise it again, but I need to finish some work first!

[kevinjohnsonmbe]

I should have explained this further, but was looking for a quick example (I am trying to get some work completed today - Honest!).

 

I was thinking of a situation over a longer time-scale, the actual amount of time is irrelevant, but if you have taken on the management/care of your 'half' of a tree that was not originally yours/on your property, then due to OLA/DoC and the acts of a reasonable man in law (as a layman not knowing what the fungi is is one thing, but ignoring the fact the tree is obviously dying and is colonised with fungi throughout the base, lumps are falling off and subsequently doing nothing about it), then yes, liability would pass to the occupier of both bits of land.

 

I am going to finish my work and turn this off for a while, but there is definitely a section on this in my copy of Mynors. If needed I will raise it again, but I need to finish some work first!

 

I can't see that you'd own 'half' a tree. 2 (or more) people would jointly own the whole tree wouldn't they???

[10 Bears]

Sorry Kevin - merely used as a colloquialism term

[kevinjohnsonmbe]

Sorry Kevin - merely used as a colloquialism term

 

 

It's a good thread and I'm following the to-and-fro with some personal interest.

 

A while back I asked a similar question when faced with a boundary tree conundrum.

 

One party wanted to fell (small garden, tree totally dominating, touching facias and windows, starling poop covered garden etc, house up for sale.

 

The other party, large detached house with extensive garden, same tree but in a distant corner didn't want to fell but neither could categorically state where the true boundary was and the tree appeared to straddle that which best available info indicated was the boundary.

 

With one house up for sale you'd think between the solicitors, estate agents & land registry it should have been definable but it seemed impossible.

 

That situation was resolved by negotiation - it rankled me a little though, the wealthy ex building soc manager in his detached house paid nothing, the elderly couple trying to sell a little terraced estate house copped for the whole bill but were desperate to resolve so they could relocate closer to family.

 

I have another impending situation between 2 of our friends / neighbours.

 

Boundary hedge trees, farm one side holiday park the other. Had both sides remained agricultural, no doubt general hedgerow maintenance would have ensured the trees were kept in good order. Now we have field one side, holiday chalets the other and trees that have been allowed to become unwieldy / potentially hazardous. Neither party appears too concerned about maintaining or reducing but I can see it coming into focus with the potential for a fall out if they continue to ignore it and there's a mishap. Maybe we'll get a definitive answer after the court case!

 

I like your point in #69 about the fluid nature of knowledge, these discussions are great opportunities to learn & test & broaden knowledge.

 

 

 

 

 

'coffee table reading'

[kevinjohnsonmbe]

Whoops, bit at the bottom shouldn't have been there!

[graham pick]

do yourself a big favour and take it down before you apply for planning.i am 1 year in to a 2nd submission to build a bungalow with a lime tree on the boundary.The parish put a tpo on it and even though its 40 feet away and with a 31 page arb report we are still battleing the council.its was refused on one thing the impact on the tree.