My Neighbor’s Tree Is Offending Me!
Can I Get Out The Ax?

I think that I shall never see
A poem lovely as a tree.
A tree whose hungry mouth is prest
Against the earth’s sweet flowing breast;
A tree that looks at God all day,
And lifts her leafy arms to pray;
A tree that may in Summer wear
A nest of robins in her hair;
Upon whose bosom snow has lain;
Who intimately lives with rain.
Poems are made by fools like me,
But only God can make a tree.

Trees, by Joyce Kilmer

So your neighbor has trees. Large trees. Large trees with offending branches and roots. Your local fire department is considering citing you because the branches of this offending tree are perilously close to your chimney. You notice one day that your cement driveway appears to be uplifting at one point and your gardener points out the cause which is, of course, a root of your neighbor’s tree.

What are your remedies?

Well before you reach for the ax and menacingly march toward your neighbor’s property, consider approaching your neighbor and softly apprising him of the situation. Most neighbors prefer to be "neighborly" and will work with you to find a common acceptable solution.

There are, however, other types of neighbors. This article deals with the "other kind."

It has been established that you cannot unilaterally enter on your neighbor’s property and cut down the tree; if you do, you will be liable in damages for trespass. It has, however, been held that an aggrieved owner may cut off the offending branches or roots at the boundary.

In a San Mateo County case which so held, the offending tree was a white oak tree about 50 or 60 feet tall with a trunk about four feet in circumference. Three of the tree’s main limbs extended about 25 feet over, and about 40 feet above, the complaining owner’s property. The court reports as follows:

"About 5 o’clock in the morning of September 2, 1950, a large limb broke loose from the tree, smashing through plaintiffs’ garage and smashed a section of the fence. Defendant . . . when asked what he was going to do about the damage stated that it was not his responsibility . . . . There was a continual dropping of smaller branches on the roof, driveway and patio. One small branch almost hit plaintiff while he was standing in the middle of his driveway. It was almost a daily chore to clean the debris from the tree. The noise of the dropping of the smaller branches on the roof constantly reminds plaintiff of the danger. During the rainy season it is a two-hour job every Sunday to clear the gutters and drain spouts of the debris from the tree. Plaintiffs are afraid of the overhanging limbs and because of them are afraid to leave their baby out on the patio. The debris requires plaintiff to sweep the patio and driveway daily and rake the lawn before mowing it."

When the owner of the tree was told that plaintiffs desired to cut back the tree to the property line, he warned "that if plaintiffs had it cut back and damaged the tree in any way, [he] would sue plaintiffs."

In this situation, it was apparently necessary to seek judicial relief and the court in fact did order the defendant to abate the nuisance, which is a judicial, euphemistic way of saying "cut back the damn tree!"

What if adjoining landowners maintain a hedge or a line of trees on their boundary as a shelter or a windbreak and one owner attempts to cut down the trees or remove overhanging limbs so as to deprive the other of shelter?

In a San Bernardino County case, the plaintiff and defendants were owners of adjoining citrus orchards. On the boundary line between the two properties, there was a row of tall eucalyptus trees, grown for the purpose of protecting plaintiff’s orchard from damage by annually recurring high winds.

The defendants had apparently pruned the trees in such a manner as to leave large holes or openings in the hedge or "windbreak" so as to permit the free passage of damaging winds. In this matter, the plaintiff was successful in obtaining an injunction against the defendant’s pruning activity.

The moral of the story? Trees over time generally grow up, and the roots and branches expand. That is the nature of trees. The nature of neighbors? Doesn’t everyone have a "tree story" of some kind?

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 2001-2002