HYPOTHETICAL: One residential yew tree and a dog

[Kveldssanger]

...went to mow a meadow....

 

So I'm looking at case law relating to poisonous trees for my Lvl 4, and I thought of something. It may have very well been discussed before, to death (pun intended), though I want to pick brains of those here one further time.

 

In my report, I have written the following:

 

Building upon this point however, one may raise questions with regards to what occurs if an individual assumed control of a parcel of land on which a yew tree resides adjacent to a boundary. In case law outlined on poisonous trees (specifically Erskine v Adeane [1873] and Cheater v Cater [1914]*), it was ruled that if a tenant assumes control of land where a yew tree already exists along a boundary, then there is no claim if an issue arises as a result of animals grazing upon the foliage, though how would this apply to domestic situations? For instance, if a homeowner rented, from a landlord who owned a row of houses, a property whose back garden was met, in one corner, by a mature yew tree in an adjacent property (owned by the landlord) that partially overhung the boundary, then if their large pet dog then consumed the foliage from that tree, would there be a case to be made against the landlord, in light of the fact that the tenant accepted the property as it stood with the yew tree being there?

 

* from the judge, who quoted in the 1914 case: "in a case of this kind the tenant takes the land demised as it is, and therefore if the tenant here took the land with the yew trees growing over it so that his cattle could eat of the branches and they did eat, he cannot complain".

 

I understand the beast that is common law, and recognise that both overhanging branches (nuisance abatement) and the ruling in Rylands v Fletcher [1868] that included the phrase "it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property" also may apply, though I'm curious to know exactly where the precedent would sit with my hypothetical scenario.

 

Hopefully this makes sense - if not, let me know!

 

Cheers.

[Treemoose]

I think it's a hornbeam....

[Kveldssanger]

Am I missing a joke, or have you replied to the wrong thread?

[Treemoose]

Yeah sorry, I think after reading your post it fried my tiny mind.

[Kveldssanger]

Lol! No worries, mate.

[eggsarascal]

He does that to me with his 'fact of the day' thread.

 

It's all very interesting and I'm sure he's correct........ Just way beyond my level of intelligence....... I know:001_rolleyes:

[Kveldssanger]

It's merely a case of immersing into something, in my opinion. For example, I cannot fluently speak French if I don't constantly practice the language at every given opportunity (for the record, je ne parle pas Francais). We're all good at different things, and I am in no doubt you're far better at many things than I am.

 

Hopefully my fact of the day thread isn't too confusing, as I do try to make it as easy to read and understand as possible!

[Jon Heuch]

So I'm looking at case law relating to poisonous trees for my Lvl 4....

Building upon this point however, one may raise questions with regards to what occurs if an individual assumed control of a parcel of land on which a yew tree resides adjacent to a boundary. In case law outlined on poisonous trees (specifically Erskine v Adeane [1873] and Cheater v Cater [1914]*), it was ruled that if a tenant assumes control of land where a yew tree already exists along a boundary, then there is no claim if an issue arises as a result of animals grazing upon the foliage, though how would this apply to domestic situations? For instance, if a homeowner rented, from a landlord who owned a row of houses, a property whose back garden was met, in one corner, by a mature yew tree in an adjacent property (owned by the landlord) that partially overhung the boundary, then if their large pet dog then consumed the foliage from that tree, would there be a case to be made against the landlord, in light of the fact that the tenant accepted the property as it stood with the yew tree being there?

 

* from the judge, who quoted in the 1914 case: "in a case of this kind the tenant takes the land demised as it is, and therefore if the tenant here took the land with the yew trees growing over it so that his cattle could eat of the branches and they did eat, he cannot complain".

 

I understand the beast that is common law, and recognise that both overhanging branches (nuisance abatement) and the ruling in Rylands v Fletcher [1868] that included the phrase "it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property" also may apply, though I'm curious to know exactly where the precedent would sit with my hypothetical scenario./QUOTE]

 

I think you may be repeating an error typical in teaching arboricultural law; one of the major criticisms of Mynor's book is that it reports many cases, interesting though they might be, that do not make the law i.e. they set no precedent. So here is a quote from 1641 "if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.”

 

So the fact that Judge A considered some facts and came to a decision does not mean that Judge B will come to the same decision - Judge B's decision will depend upon the facts presented in court....many of which may not be in any court report or law report which is a mere summary of a case. So knowing Judge A's decision is only of limited use....far better to understand the legal principles.

 

So the Lord Chief Justice stated in 2009 "Reference should not be made to authorities which do no more than either (a) illustrate the principle or (b) restate it.".........

 

I doubt whether those pedalling legal arboricultural peccadilloes will listen and students may be forced to follow their masters.....so perhaps you have no choice!

[Kveldssanger]

In light of what you said there Jon, I completely agree (and am glad you said that). I suppose the manner in which I have tended to understand 'precedent' is that, whilst not 'binding', it's something that holds influence over future decisions. I recall there was a more recent case that was originally quite 'way-off' from the precedent, and at the court of appeal the judges overturned it and ruled more with precedent (cannot for the life of me remember the case, right now - someone please jog my memory!), so from that I kind of took it as something that means that a 'passive' and perhaps 'partial' continuation of the status quo applies (as in, don't you attempt to deviate wildly from the norm else you'll get proverbially burned).

 

I shall make sure to add to my work something along the lines of what you have said, and that quote you mention is very good!

 

Thanks.

[Jon Heuch]

I shall make sure to add to my work something along the lines of what you have said, and that quote you mention is very good!

 

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