Hi Kelvin. I am posting to the group, though they may well wonder why I just don't walk down the corridor.

The distinction is in the planting - between a tree that over time grows and eventually overhangs the boundary line, and one that, already mature, is transplanted in such a way as to immediately overhang, thereby satisfying an important requirement of trespass. The latter has analogies with Kelsen (a sign installed that overhangs) but not the former. Bernstein does not figure in this analysis, as being an invasion of airspace outside of that which is necessary for the plaintiff's ordinary use and enjoyment of his land.

Rick

At 02:21 PM 5/27/2009, Kelvin F.K. Low wrote:

Dear Jason et al,
 
Neil is of course correct that liability for overhanging branches has traditionally regarded as a nuisance rather than trespass. However, it is not clear how significant, for this situation, the distinction between the two actions is. Thus, overhanging advertising signs are a trespass: see Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334. In the latest edition of Gray & Gray, at p 1263, fn 5, the right to sever the branches of an overhanging tree is described as "just as appropriately founded in nuisance as in trespass", citing Lemmon v Webb [1894] 3 Ch 1 at 24 and Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479 at 485E.
 
It seems difficult to justify a distinction between overhanging branches and overhanging advertising signs.
 
Cheers,
 
Kelvin
2009/5/27 Neil Foster < Neil.Foster@newcastle.edu.au>

Dear Eoin/John/Jason and others;

I have now had some further thoughts on this, which are consistent with Eoin's comment. Liability for overhanging branches is in nuisance, and we all know that nuisance normally only deals with "unreasonable" interference with someone else's enjoyment of their land (that is, there usually has to be a certain amount of "give and take", etc.) While this "unreasonableness" criterion is normally not applied in the tree branch cases (see eg Young v Wheeler (1987) Aust Torts Reports ¶80-126 ) it might be possible to argue that where it is apparent that removal of the overhanging branches will destroy the tree, that is a special case where there must be a balancing of rights. The question is what will make such a consequence "apparent"- but maybe if it is clear that 90% of the branches are hanging over the fence, then perhaps it would be apparent at that point that removal of them all might endanger the tree. Hence the obligation will then arise to carry out abatement in a way that reflects some compromise.

Fleming, 9th ed, p 497 says that "when the damage involved in terminating a nuisance is wholly disproportionate to the threatened harm, like pulling down a structural wall which only negligibly encroaches, the privilege may not be exercised". The case cited is Burton v Winters, which Eoin mentioned, although it is not an entirely satisfactory support for this view of the law of nuisance, being a case which was really about a trespass (encroachment by a building over a boundary line is trespass, not merely nuisance.) Still, it seems like a reasonable proposition.

So in this sort of case one would argue that while there may be a nuisance, the nature of the remedy where cutting all the branches will kill the tree has to be judged on the criterion of a "reasonable" response to the harm.

Regards

Neil

 

Neil Foster

Senior Lecturer, LLB Program Convenor

Newcastle Law School

Faculty of Business & Law

MC158, McMullin Building

University of Newcastle

Callaghan NSW 2308

AUSTRALIA

ph 02 4921 7430

fax 02 4921 6931

>>> "Eoin.Quill" <eoin.quill@ul.ie> 26/05/09 5:23 >>>

Jason/Neil,

Lemmon v Webb did not raise the question raised, so the principle really

concerns harmless lopping (if we can call it that). Burton v Winters

[1993] 1 WLR 1077 also deals with abatement (in a more controversial

context - knocking a wall); Lloyd LJ, at p. 1081, stated that 'the

courts have confined the remedy of self-redress to simple cases such as

an overhanging branch, or an encroaching root, which would not justify

the expense of legal proceedings, and urgent cases which require an

immediate remedy'. The implication is that in the case of the tree that

may be killed is not 'a simple case' - this would depend on the lopper

having notice of the likely grave impact (no pun intended, just a happy

coincidence).

EQ

________________________________

From: Jason Neyers [ mailto:jneyers@uwo.ca]

Sent: 25 May 2009 18:56

To: obligations@uwo.ca

Subject: ODG: Over-hanging Branches

Dear Colleagues:

As I understand the common law, a person is entitled to trim

over-hanging branches that encroach unto his or her property and must

return the severed branches to the tree's owner if requested.  What is

the position if the trimming, even if done by an expert, would

invariably kill the tree? Are there any cases dealing with this issue or

any interesting discussions of this issue? I would appreciate any

assistance that you might provide.

All the best,

--

Jason Neyers

Associate Professor of Law & 

Cassels Brock LLP Faculty Fellow in Contract Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435