Tree law, like fence law, has a solid common law foundation but has been much changed by statutes and even municipal by-laws.
Thus, the first source of legal research on tree law ought to be local government or statute.
For example, in the Canadian jurisdiction of Ontario, §10 of the 2009 Forestry Act prevails:
"An owner of land may, with the consent of the owner of adjoining land, plant trees on the boundary between the two lands. Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands. Every person who injures or destroys a tree growing on the boundary between adjoining lands without the consent of the land owners is guilty of an offence under this Act."
Then, some jurisdictions prohibit the cutting or pruning of designated trees without a permit. For example, the Canadian City of Victoria, circa 2009, has a Tree Preservation Bylaw and tree preservation enforcement officers. The complex system defines protected trees by reference to their scientific name, and can even designate any tree by declaring them to be, at the City's discretion, significant trees. With all this comes a system of licensing. You need a permit to prune or remove them; permits available for $30!
Some jurisdictions include tree preservation in their criminal statutes, making it a crime to harm another person's tree.
However, in a vacuum of statutory coverage, the common law does provide a body of tree law, albeit inchoate.
For example, the venerable Halsbury's Laws of England, 4th Edition, states that there is controversy in the common law in regards to tree ownership suggesting:
"... a tree will prima facie belong to the owner of the land on which it is planted."
In most situations, the oewnership of a tree will pose no difficulty. It is owned by he or she upon whose land it's trunk stands.
However, in a 1698 case, Waterman v Soper, the court held that where a tree grows such that its trunk and branches extend over the boundary line, it is then owned jointly by both property owners.
The 2009 edition of the Canadian Encyclopedic Digest:
"A tree growing on the boundary between adjoining properties is the common property of both owners; if one owner cuts down the tree without the sanction of the other, that owner is responsible to the other owner in damages. However, a tree planted on the land of one owner and growing thereon for years which in the course of its growth encroaches a few inches upon adjoining property does not become the common property of the adjoining owner."
Halsbury's succintly provides:
"Where the branches of a tree belonging to one landowner or occupier overhangs the land of an adjoining owner or occupier, the latter may at any time cut off those parts which overhang without notice to the former, provided that in doing so he does not trespass on the adjoining land."
In Ford v Zelman, a lower court judge held that even trespass into the airspace of the tree-owner can vitiate the right to prune and expose the cutter to damages. The Ford case may be the poster boy for zealous tree cutters. Ford was fed up with the overhang and droppings from his neighbour's tree and one day, when the neighbour wasn't home, he trimmed the tree so much that it died:
"Trespass can and did occur in the airspace over Mr. Ford’s property where the stems and branches on that side of the fence were cut. The method of trimming this tree was over-zealous, amateurish and ultimately negligent. There was a careless disregard for the health of the tree."
Fruit
The situation of a tree's fruit falling on a neighbour's land has ancient common law. Henri de Bracton proposed that the owner of a tree from which fruit has fallen on neighbouring land, may enter the neighbour's land for the sole purpose of collecting his fruit and causing no damage. In this action, he would be shielded from trespass. In Mitten v Faudrye (1626), Justice Popham held:
"If a tree grow in an (sic) hedge, and the fruit fall into another man's land, the owner may fetch it in the other man's land."
REFERENCES:
- Canadian Encyclopedic Digest, "Boundaries and Surveys" (Westlaw Canada, 2009)
- City of Victoria, Tree Preservation Bylaw, #105-06
- Duhaime, Lloyd, Fence Law
- Duhaime, Lloyd, Legal Definition of Boundary Tree
- Duhaime, Lloyd, Real Estate and Tenancy Law
- Ford v Zelman 2005 BCPC 344; also published at 19 CELR 3d 316
- Forestry Act, R.S.O. 1990, c. F.26
- Mitten v Faudrye 79 ER 1259 (1626)
- Waterman v Soper 1698 1 Ld Raym 737