Trees and Law

TREES – WHAT A NUISANCE!

Trees, they provide us not only with much of the beautiful landscape that makes this country, but they are also the lungs of the world, providing us with much needed oxygen we need to survive. Nevertheless trees and their owners, just like the rest of us are not above the law. There have been some interesting cases in Ireland and in the UK over the years that illustrate this.

In Lynch v Dawson 1946 the defendant’s property was adjoining a public road. Furthermore a tree on the property overhung onto the road. The overhanging branches caused injury to the driver of tractor trailer on the public road. The tree-owner was found as liable in the law of nuisance for the injury caused to the driver of the tractor-trailer. The court determined that as cars passing on the adjoining road were a common occurrence, the tree owner should have been aware of the danger that the tree posed to the vehicle.

The roots of trees can also cause legal problems, again in the area of Nuisance.  In Davey v Harrow Corporation 1958, the roots from trees on the defendant’s property began to encroach on his neighbour’s property causing structural damage to his home. The tree-owner was again held liable for the damage and the neighbour was awarded damages in nuisance for the physical damage caused by the trees.

A question was posed in the Davey v Harrow case, that being, “Is the neighbour onto whose land the roots or overhanging branches escape not responsible for abating the nuisance by lopping the branches or by grubbing up the roots?” The answer is, “No”.  While the neighbour has the right to dispose of the overhanging branches or roots, this right does not mean that the tree owner is not liable for any nuisance caused. In the case of Humphries v Cousins the judge stated;

“The nuisance consists of allowing the trees to encroach from the land of their owner onto the land of his neighbour. The owner must keep his trees in, just as he may not allow filth to escape from his premises onto that of his neighbour.”

It was also argued by counsel for the tree-owners in Davey v Harrow that they could only be liable for a tree which was artificially planted. They relied on the case of Crowhurst v Amersham Burial ground. In this case a yew tree had been planted and branches had grown through railings which separated two properties. The branches were poisonous to animals and a horse on a neighbouring property died. The tree owners were held liable for damage caused. The court found that the whether the tree had been planted or had grown naturally was irrelevant, citing case of Smith v Giddy in which the branches had overgrown onto farmers land and spoilt his crop.

It is not only damages that are sought in cases such as these. Often injunctions compelling the tree owner to take certain action will be granted by the courts. This was evident in the case of McCombe v Read and Another. Here the tree causing the nuisance was a black Italian poplar tree. The roots, which had grown into the neighbour’s property, had caused structural damage to their house, resulting in them having the house underpinned. The judge granted an injunction compelling the tree-owners to ensure that the trees roots did not extend into their neighbours land.

So on review of the case law it is clear that in a legal sense, trees are often classed as a nuisance. This allows the victim of such nuisance to seek damages and/or an injunction against tree owners. Thus the tree owner must take care to ensure that their tree does not interfere for a considerable length of time with their neighbours use and enjoyment of their land. It is not sufficient to pass responsibility for encroaching roots or branches onto the neighbour. To be immune from legal action one must take preventative measures themselves.  So gardening enthusiasts, take care when planting a tree to ensure that the roots will remain on your property and that any overhanging or encroaching branches from an already established tree are dealt with. This may be a practical nuisance but to avoid it becoming a legal one, please take care.

This article was researched and supplied to the club by
Brendan Tabb
Law Student LYIT

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