daltontrees

Good posting, Jon. It is these 2 bits that I think should be noted by tree surgeons purporting to be giving advice. There is a somewhat alarming extent to which it doesn't matter whether you don't say you're not giving professional advice, that you're only taking instructions prior to pricing and being appointed.

Someone on UKTC just flagged up a recent law case Stagecoach v Steel and Hinds, the written judgement goes into huge depth am ong other things as to whether a tree surgeon who had done work in agarden should have spotted rot on a tree and have brought it to the owners attention. The tree fell over later across the railway line and a train hit it. Damages £1/3M. It's scary because although the tree surgeon was off the hook if he had been qualified in arboriculture he might not have been in the clear. These law cases probably don't affect most tree surgeons acting purely as contractor, but there seems to be some implied professional duty to alert customers to defects in trees that you aren't even there to look at. If anyone wants me to post the transcript I can do, or maybe attempt a summary of the relevant tree surgeon bits.

COuld be Coprinus sylvaticus, explaining the lack of flecks. But the shininess suggests they are indeed Glistening Ink Cap Coprinus micaceus. Same prognosis either way. Suspiciously close to kerb. I would dig a little and see if a large root has been severed by kerbing and that it is Horse Chestnut.

It's Elm alright, don't know which one though. First guess Ulmus procera.

Tragic! A lapsed pollarded poplar by the look of it. It's days are surely numbered in the dozens.

Couple of pics of Neodiprion sertifer (European Pine Sawfly) caterpillars under the USB microscope last week.

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.

I genuinely can't find a definition of betweenness, your link is helpful but ony takes me to betweenness risk matrices. I was hoping that there would be a simple definition for the word 'betweenness' in isolation.

Do try please? We might grasp it. Otherwise the significance of the posting is not clear.

I like some of the other items for sale, like the 'Kinetic Energy Recovery Rope' which on the Marlow label simply says 'Tow Rope'.

I'd say Prunus spinosa.

Could you define 'betweenness' please?

Ah but the ISA system isn't claiming to be a tree risk management system. I don't see the problem. It has facilities to record mitigation of risk options. After that it's for the risk manager presumably to deal with ALARP. If the client wants the tree risk assessor to to take it further and produce a rissk management recommendation he only has to instruct him to do so. Then in a couple of words the risk assessor can put a price against each mitigation option and the extent of mitigation for each option and recommend to the client the appropriate course of ALARP action.

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

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.

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

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 don't see a 2 input system being useful as a risk management tool but you could just about get away with it as a risk assessment tool. It's the time spent pondering it that teaches you though, isn't it, rather than by getting the answer right? And if you also learn along the way that it's difficult, then that's probably a valid conclusion. What would we all do if consultancy work was so easy and simple that anyone could do it? I hope you mean Matheny & Clark and not the recent Matheny-assisted ISA system. I would never use the latter unless I was told to be the client and even then I would be caveating my reports to say that I thought the outcomes are inherently crude and unreliable for some purposes. It has 24 possible outcomes, each of which has to fall into one of 4 categories. The M&C 1994 has 24 also but oddly has 12 possible categories, which is better.

I fear so too, but I think I will persever because it would be a mistake to assume that anything resolved here on Arbtalk will reach even the Arbtalk members never mind the wider arb community and across the pond. Surely only peer-reviewed publication can do that? And if nothing gets resolved or emerges then my energies will not be wasted because after all an article is just one person's opinion. And if I incorporate any useful parts from this debate in an article I will give credit where it is due. I stand to get nothing but more grey hairs from publication, and quite honestly I don't care who gets the credit for advancement of best practice as long as no-one is trying to pass off others' work as their own.

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

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.

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.

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.

I am very interested, if you have something substantial enough to need a bit of legal steering, it sounds exciting and worth a debate. Likewise I think I have quite a few fresh perspectives on tra that are worth discussing. I have a vast wad of research papers and workings that are ready for peer review, and if all this suff hadn't come up it would probably be with Taylor & Francis by now. Discussion with like-minded (and refreshingly non-tree) friends over the weekend is beginning to persuade me that my line of thinking would be be stronger if supported with some further research which I think I can turn around in 2 months. Let's open the channels of communicaton as wie as we dare as soon as we dare. Everyone.

All good, all I meant was that any discussion about tree risk assessment without being able to cite published scholarly articles or practice notes is going to be difficult. So for example I would rely on Matheny & Clark's important published work, and Mike Ellison's too, and others like Lonsdale, Barrell and some less obvious ones that are not specifically about trees. I was never suggesting that I could snipe with impunity from an Arbtalk bunker. I don't seek or want immunity from criticism. The key is what I think criticism means. In common language it nusually means slagging off, knocking, having a go at etc. But if you go bac t the dawn of civilisation it is possible to indetify that criticism can and did mean something ese, namely (and these days we have to add a word of clarification)' constructive criticism. What arb culture just called keeping it positive. It is the defining quality of philosophy.