My Neighbor’s Tree Is Offending Me! Can I Get Out The Ax?
Myles M. Mattenson engages in a general civil and trial practice including litigation and transactional services relating to the coin laundry and dry cleaning industries, franchising, business, purchase and sale of real estate, easements, landlord-tenant, partnership, corporate, insurance bad faith, personal injury, and probate legal matters.
In providing services to the coin laundry and dry cleaning industries, Mr. Mattenson has represented equipment distributors, coin laundry and dry cleaning business owners confronted with landlord-tenant issues, lease negotiations, sale documentation including agreements, escrow instructions, and security instruments, as well as fraud or misrepresentation controversies between buyers and sellers of such businesses.
Mr. Mattenson serves as an Arbitrator for the Los Angeles County Superior Court. He is also past chair of the Law Office Management Section of the Los Angeles County Bar Association. Mr. Mattenson received his Bachelor of Science degree (Accounting) in 1964 and his Juris Doctorate degree from Loyola University School of Law in 1967.
Bi-monthly articles by Mr. Mattenson on legal matters of interest to the business community appear in alternate months in The Journal, a leading coin laundry industry publication of the Coin Laundry Association, and Fabricare, a leading dry cleaning industry publication of the International Fabricare Institute. During the period of May 1995 through September 2002, Mr. Mattenson contributed similar articles to New Era Magazine, a coin laundry and dry cleaning industry publication which ceased publication with the September 2002 issue.
This website contains copies of Mr. Mattenson's New Era Magazine articles which can be retrieved through a subject or chronological index. The website also contains copies of Mr. Mattenson's Journal and Fabricare articles, which can be retrieved through a chronological index.
In addition to Mr. Mattenson's trial practice, he has successfully prosecuted and defended appeals on behalf of his clients in various areas of the law. Some of these appellate decisions are contained within his website.
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 apprizing 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
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 California 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 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 anddamaged
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 another California 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