MY NEIGHBOR’S TREE IS OFFENDING ME!
CAN I GET OUT THE AX?
I think that I shall never
A poem lovely as a tree.
A tree whose hungry mouth is
Against the earth’s sweet
A tree that looks at God all
And lifts her leafy arms to
A tree that may in Summer
A nest of robins in her
Upon whose bosom snow has
Who intimately lives with
Poems are made by fools like
But only God can make a
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 apprising 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 “other kind.”
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
In a San Mateo County 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 5 o’clock 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 and damaged the tree in any way, [he] would sue
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
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 a San Bernardino County 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
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
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
[This column is intended to provide general information only and
is not intended to provide specific legal advice; if you have a
specific question regarding the law, you should contact an
attorney of your choice. Suggestions for topics to be discussed
in this column are welcome.]
Reprinted from The Journal
Myles M. Mattenson © 2009