People’s legal understanding can often be lacking, when dealing with trees. It could be that branches from their tree are hanging into your driveway, or your tree may be blocking sunshine into their back garden. So let’s have a deeper look below, at 5 common legal issues, revealing just what your responsibilities are, legally.
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Neighbour disputes- A summary of the law and relevant precedents
Neighbour disputes regarding trees are common and can be the cause of significant distress to all parties involved. The following text has been compiled to provide you with an overview of current precedents so that you can make an educated decision regarding your responsibilities as a tree owner as well as to understand the responsibilities of your neighbour in relation to how you might be affected by their trees/hedges/roots.
Where communication has broken down it is often helpful for an intermediary to assist with working a way forward that ensures all are treated fairly. We are happy to assist and have had a lot of experience with situations such as these over the years.
If you are currently dealing with a dispute, please feel free to get in touch with us.
Overhanging Branches
1. Earl of Lonsdale vs Nelson 1823
Summary:
Case for trespass made by the Earl of Lonsdale for breaking and entering the plaintiffs manor (to make essential repairs)
Outcome:
Best J (Judge) said: ‘Nuisances by an act of commission are committed in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the person who committed them, but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees which overhang a public road or the private property of the person who cuts them.’
“The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person in whose property the mischief has arisen, to remedy it. In such cases an individual would be justified in abating a nuisance from omission without notice.”
Precedent:
The neighbour could cut the overhanging branches as far as the boundary line without consent from the landowner.
2. Lemon vs Webb 1894
Summary:
This case involved the cutting of overhanging branches back to a property line by the respondent.
Outcome:
“…if he can get rid of the interference or encroachment without committing a trespass, or entering upon the land of his neighbour, he may do so whenever he pleases, and that no notice or previous communication is required by law.”
Precedent: Overhanging branches were permitted to be removed but the act of trespassing to carry out the removal was not permitted.
3. Smith vs Giddy 1904
Summary:
This case involved the plaintiff arguing that overhanging branches from his neighbours land had caused damage to his fruit tree stock for which he was seeking recompense.
Outcome:
The judge found in favour of the defendant and stated that; ‘the plaintiff should remove the nuisance himself by cutting the branches back to the boundary.’The plaintiff appealed the judgement and won.
4. Kennedy J:
“A person has land on which he is entitled to grow trees, but by what right can he claim immunity if he allows that which is on his premises, and which may do damage of this kind, to inflict damage upon his neighbour”.
“where a tree is overhanging and damage results from the overhanging branches to that persons neighbour, I do not see why the only right should be for that neighbour to go to the expense and labour of lopping the branches himself.”
Rylands and Fletcher is referred to in this judgement in regards to “a thing likely to do mischief if it escapes”.
Precedent: The tree owner was responsible for ensuring that his trees overhanging branches did not cause damage to his neighbour.
5. Mills vs Brooker 1919
Summary:
Ownership of fruit growing on the plaintiffs tree which overhangs the defendants land is in question. The defendant picked and sold fruit for profit.
Outcome:
The judge found in favour of the plaintiff and decided that the defendant had the right to pick the fruit (and cut back branches) but that these remained the property of the tree owner.
‘fruit remains the property of the tree owner whether carried by overhanging branches or whether blown off by the wind.
Precedent: The person cutting branches from his neighbours tree back to the border of his property must offer the branches (and fruit etc.) back, unconverted.
Conclusion:
Common law in relation to overhanging branches appears to be effective where property borders (and their potential encroachment) are clearly defined and agreed upon by all parties. Where ambiguity exists then the case becomes less clear and liability difficult to prove.
When access to the tree owners land is not permitted, proper pruning works in accordance with best practice may be difficult or impossible to achieve.
Trespassing Roots
- Butler vs Standard 1940
Summary:
The defendant had planted a number of poplar trees within 10 feet of his neighbours house. 7 years later structural issues were found with the neighbour’s house. This was deemed to be caused by the shrinkage of clay soils by the water uptake of the roots of the trees.
Outcome:
The court held that the invasion of the poplar roots into the neighbour’s property was a nuisance, and the plaintiff was entitled to damages.
Precedent: Anyone who plants trees must understand their destructive potential and is responsible for any damage that occurs as a result of their growth.
2. McCombie vs Read 1955
Summary:
Damage to the plaintiffs property caused by a neighbour’s poplar tree.
Outcome:
The case was held in favour of the plaintiff with both damages and an injunction being granted.
Precedent:
An injunction may be served on the tree owner where a continued nuisance from encroaching roots is found.
The injunction may require the owner of the tree to remedy the damage caused and seek to prevent a recurrence.
3. Davy vs Harrow Corp. 1957
Summary:
Root damage to plaintiffs property by neighbour’s trees.
Outcome:
The defendants denied ownership of the land that the trees were on and also claimed that the trees had not been planted but had been self-sown and were growing naturally for 200 years. Judgement was given in favour of the defendants. However, upon appeal by the plaintiff, it was proven that the trees were actually owned by the council and that whether a tree is planted or self-sown makes no difference as to the liability for the trees actions. The appeal was allowed.
Precedent: If a tree is self -seeded or planted makes no difference in terms of liability where damage is caused.
4. Solloway vs Hampshire C.C 1981
Summary:
Although root damage and ‘nuisance’ caused to the plaintiffs property was not in question in this case; whether the damage was ‘reasonably foreseeable’ by the Hampshire County Council (HCC, the defendant) was to be decided.
Outcome:
The Court of Appeal ruled that the location of small clay pockets (beneath the plaintiffs house that were liable to shrinkage leading to foundation issues) was not reasonably foreseeable and hence there was no breach of duty on the part of HCC. The appeal was allowed.
Precedent:
Only if the damage was reasonably foreseeable may the tree owner be held responsible for damage.
Conclusion:
Again, where borders are clearly defined the law appears to be effective. The issue here is proving where the damaging roots originate from.
Although various methods of identification exist, it is difficult to prove in some cases. Also, proving that the roots were the cause of damage may also be difficult to confirm if other roots, services etc. are present and could also be a possible cause of damage.
As roots may travel far beyond expected distances in search of water and nutrients the term ‘reasonably foreseeable’ may be difficult to apply where landowners are not tree experts.
Poisonous Trees
- Rylands vs Fletcher 1868
Summary:
The defendant constructed a dam on his land out of which, water leaked into the mine workings of his neighbours land causing extensive damage.
Outcome:
Defendant charged. “If a person brings, or accumulates (plants a tree), on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.”
Precedent: The person responsible for bringing (or growing) anything on his land was responsible for the damage it may have caused.
2. Crowhurst vs Amersham Burial Ground 1878
Summary:
The plaintiffs horse was killed after ingesting parts of a yew tree which grew from his neighbours property into his own.
Outcome:
The ruling was in favour of the plaintiff and followed on from the Rylands & Fletcher (1863) judgement; ‘if a person brings on to his or her land something which is dangerous or harmful and he allows it to escape, he will be held liable for any injury which may result.’
Precedent:
A person is responsible for the damage caused to others by something dangerous or harmful which he introduces.
3. Ponting vs Noakes 1894
Summary:
Another horse was killed after ingesting yew leaves growing on his neighbours property. This time the tree did not breach the plaintiffs’ border and instead the horse crossed the defendant’s border to eat the leaves.
Outcome:
Charles, J (judge): “I do not see that they can be made responsible for the eating of these Yew leaves by an animal which, in order to reach them, had come upon his land. The hurt which the animal received was due to his wrongful intrusion. He had no right to be there and the owner therefore has no right to complain.”
Precedent: Where trespass must occur before damage may be inflicted it is the responsibility of the trespasser and not the landowner to manage safety and dangerous occurrences.
4. Erskine vs Adeane 1873
Summary:
Tenant brings the case of ‘negligence and nuisance’ against his landlord when his horse died after ingesting yew leaves from branches that overhung the tenants grounds.
Outcome:
In favour of the landlord. ‘Just as in the case of a purchaser of a business the rule is caveat emptor, so in the case of taking the lease of property the rule is caveat lessee; he must take the property as he finds it.’
Precedent:
It is the responsibility of the purchaser to assess his property for safety etc., buyer beware.
Conclusion:
Again, where borders may be disputed there are issues with responsibility and boundaries must be clearly defined for the law to be effective.
What defines the term ‘poisonous’ is also an issue. Small quantities of substances may be consumed without ill effect but when consumed in large proportions become poisonous. What may be poisonous to humans may not be to sheep. If the environment and usage changes so does the poisonous risk. This could lead to ambiguity in ascertaining liability.
Dangerous Trees
- Rylands vs Fletcher 1868
Summary:
The defendant constructed a dam on his land out of which, water leaked into the mine workings of his neighbours land causing extensive damage.
Outcome:
In favour of the neighbour “If a person brings, or accumulates (plants a tree), on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.”
2. Donoghue vs Stevenson 1932
Summary:
The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half-decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a friend, so she was unable to rely upon any contract.
The question appears to be; does the defendant owe a duty of care to the plaintiff being that there is no contract?
Outcome:
In favour of the appellant. Who are neighbours? ‘…persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’ Lord Atkin
Neighbours are persons who are reasonably foreseeable as being affected by your actions or omissions. The absence of a contract does not mean that a duty of care is not owed.
You cannot knowingly foresee harming your neighbour. Neighbours are persons who are reasonably foreseeable as being affected by your actions or omissions. A duty of care is not owed to the world at large; it is owed to your neighbours.
Precedents:
‘Neighbours’ are defined as anyone who (you may reasonably foresee) may be affected by your actions.
A person can take civil action against a respondent where negligence is found. No contract need exist between the parties.
3. Kent vs Marquis of Bristol 1947
Summary:
A significantly decayed elm tree failed, killing a driver of a vehicle. The decay was deemed to be easily identifiable by inspection. No inspection of the tree in question was carried out.
Outcome:
The tree owner was found liable as he had failed to inspect the tree and therefore no action to reduce the risk had been taken.
Precedent: Where damage or injury occurs as that could not have been ‘reasonably foreseeable’ by the landowner, they may not be found liable.
4. Caminer & Another vs Northern London Investment Trust Ltd 1951
Summary:
A tree on the defendants’ land fell on the claimants’ vehicle and injured them. The tree had suffered from a disease, although this was not obvious.
Outcome:
The House of Lords held that the tree defendants had adhered to the standard of conduct to be expected from a reasonable and prudent landowner and it was not liable
Precedent: Where damage or injury occurs as that could not have been ‘reasonably foreseeable’ by the landowner, they may not be found liable.
5. Chapman v London Borough of Barking and Dagenham [1998]
Summary:
Damage inflicted on property by a roadside tree.
Outcome:
Court found in favour of the plaintiff
Precedent:
The landowner had a ‘duty of care’ to inspect his trees regularly. In the absence of any inspection evidence the tree owner is liable.
Conclusion:
Again, boundary definition is important in the first instance to ascertain responsibility and liability.
As the case of Chapman v London Borough of Barking and Dagenham [1998] shows, the fact that the tree defect would not have shown up in a report made no difference to the outcome.
That leaves the question of ‘how in depth a report needs to be to be deemed showing a ‘duty of care’?’ unanswered. If a person damages or kills a tree which then leads to its failure, at what point is the person no longer responsible? This is not covered.
At which point does a tree become; ‘dangerous’? If any tree falls, sheds limbs or even drops small amounts of deadwood injury could occur. Without clear definition of what is ‘dangerous’ the law remains open to interpretation.
Rights to Light
There is no absolute ‘right to light’ from a neighbours land in common law. No rights in law exist from court cases regarding to trees infringing peoples ‘right to light’.
However, a right to light may be acquired by ‘anyone who has had uninterrupted use of something over someone else’s land for 20 years without consent, openly and without threat, and without interruption for more than a year,’ under The Prescription Act 1832.
Whether the light lost interferes with ‘the ordinary occupations of life’ is to be considered here.