Oak Tree on Boundary therefore 2 owners

[10 Bears]

its was refused on one thing the impact on the tree.

 

Good. The planning system works then.

[10 Bears]

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.

 

Do you know that I only realised this morning whilst having a scrape, that I am generally describing the principle of Rylands Vs Fletcher. I didn't intend this when I wrote this, but it does follow ie don't allow something on your land, or should it escape, you are liable for the consequences.

 

I know R Vs F, has been superseded by other judgements, particularly pertaining to trees, but I thought this demonstrated the principle at least.

[10 Bears]

Ah - now I see where your perspective is and I can understand the confusion. Thats the problem with forum posts - little issues that could be resolved in a 5 minute chat take days to come out. A couple of points Ill explain further:

 

You suggest that encroachment, or the fact the tree is growing across a boundary, confers ownership of the tree to both parties in proportion to the amount of encroachment

 

No - encroachment is where a tree is wholly situated inside one boundary (so wholly owned), but the roots/branches are going into another's property and causing damage. The encroachment is the travel of the tree tissue, and the damage caused is an actionable nuisance as Mr. Another has the legal right to remedy it.

 

therefore liability for the tree rests with both property owners

 

This is where different principles are beign mixed up. Ownership is not about liability per se - but it could infer liability to more than one responsible party should a hazardous situation arise. The example I gave referred to liability following failure of a common ownership tree - not merely branch/root encroachment. It could have been the way I explained it in the first place as Jules pulled me up on this as well - I didn't write it in the way it was taken (or so I thought!)

 

You agree that the overhanging fruit or the branch remains the property of the tree owner and not the person over whose land it is encroaching. I find this idea of liability without ownership contradictory as I do the idea that if you own part of the tree by virtue of encroachment you don't own that which is encroaching.

 

Right - so I think I've covered this but to recap: apples are basically private property if separated from the tree - but not the chap whose garden they happen to land in. Liability is only in affect where there is absolute ownership (potentially by more then one), and related to hazardous events. Encroachment is an element of actionable nuisance.

 

You suggest that encroachment confers proportionate ownership, but now you suggesting that the branches/fruit remain the property of the tree owner not the person over whose land it encroaches. Again I find this contradictory......

 

....But you disagree with this by claiming encroachment confers ownership.

 

No, I don't - but this is related to what I've just covered i.e. encroachment is something else.

 

Encroachment and actionable nuisance are different things

 

Well, yes they are - but they are related and there has to be encroachment (coupled with subsequent and provable damage) for there to be an actionable nuisance.

 

As previously said, the tree belongs to the person on whose land it was planted or seeded, and they are entirely liable for it.

 

Yes if it stays in their sole ownership

 

Encroachment is just encroachment and you can cut it off. As you know the stuff you've cut off belongs to the tree owner and has to be offered back, it hasn't become yours by virtue of the encroachment, neither does it change ownership from yours whilst attached to the tree to the tree owners once severed. And that goes for any part of the tree, roots branch or trunk.

 

Yes you can of course chop back to the boundary (deeds are absolute remember), and it must be offered back as any arisings are the private property of the individual owner. If it is common ownership then you have just hacked away at your part of the tree under a misunderstanding of the rules of play. I got a bit lost on the last couple of sentences you wrote there - but I think its going over the same information.

 

So, I think that explains it. If I haven't managed to, then I just don't know how else to put it!

 

All the best...

[daltontrees]

I suspect some of the confusion here is arising from a wee misunderstanding.

 

The latin legal maxim of a caelo usque ad centrum must be taken very literally. Draw a line vertically from the centre of the earth to the top of the sky. If you own land you own the soil and rocks beneath and the airspace and sky above. A tree that starts on one side of a boundary belongs to the owner of that land. If its roots or branches come to cross the boundary they are encroaching. But if the normal annual growth increments of the stem bring part of the stem across the boundary, that too is encroachment. In other words, it's not just branches and roots that can encroach.

 

A tree on a boundary may appear to straddle the boundary so evenly that it may appear to be owned in common. But it is only owned in common if it originated excatly on the boundary by mutual agreement or mutual tolerance. Common ownership cannot be created by a tree, only by the actions or inactions of both parties.

 

This is very much the exception to the normal presumption that it originated on one side or the other.

 

The parties may have jointly chosen to plant a boundary hedge and let the trees in it grow (action). They may both have spotted a wild seeded tree on the boundary and both decided to let it grow (inaction). They are then barred from subsequently asserting in law that they have been encroached upon by its stem, roots or branches. If there is no express written or verbal agreement, this 'bar' is known in scots law as 'acquiescence'.Presumably it has another name in english law but the principle is the same.

 

Keep it simple, because it is simple. It only gets complicated when agreements are lost say by the original agreeing parties dying or selling up and moving on. The law seems to have no equally simple answer for this situation. It would be for a fool with more money than sense or a very strong attachment to a tree to invoke the courts to decide a dispute.

[daltontrees]

An epilogue to this comon ownership subject.

 

I now have another case where a common ownership tree is causing no end of diffculties. How do I know it is commonly owned? Because one owner had all the land and subdivided it a while ago and specified that the trees were the boundary. He now fnds himself potentially unable to get access to his site because the tree is in the way and the neighbour is not agreeing to its removal. Even if another access can be found, part of the site cannot be developed because low-hanging branches on the development site are in common ownership.

 

Create a common onwership in haste, repent at leisure. And your descendents. And theirs.

 

I am going to have to dig deep into common law to extrapolate the law set out in Mynors, because I cannot accept that the law intends that ones property can be rendered useless by common ownership branches. Aaargh!

[Gary Prentice]

Let us know how you get on, I'm not sure though that the answers going to be in Mynors.

[kevinjohnsonmbe]

Has anyone got a link to Richardson v Jay? I can't seem to find anything....

[Gary Prentice]

Has anyone got a link to Richardson v Jay? I can't seem to find anything....

 

That doesn't ring any bells, what's it in regard to? Have you a date or know in which court?

[kevinjohnsonmbe]

That doesn't ring any bells, what's it in regard to? Have you a date or know in which court?

 

It's quoted earlier in this thread Gary as 1960 and in Mynors (without the date) ¾ of the way down p67 2nd ed. But I can't find it on Google, only links to people quoting it (this thread and some random "Garden Law" forum.

 

Grrrrrr.....

[Jon Heuch]

In simple terms, ownership is proportionate to the percentage within each boundary. In your example, the ownership would be 90:10, so if remedial work was required, the bill would be split proportionately the same.

 

Where did you get that idea from? And how are you going to calculate a % split - based on land area covered by the crown? biomass? Area of the bole on each side of the boundary, remembering that anything above the ground may not reflect the % split of what is actually in the ground i.e. if all the roots are on one side of the boundary (with a wall for example) but the bole starts to grow over.....? Whilst your approach may have a practical attitude to addressing a problem it's not supported in law, is it?