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Interesting Facts: About Tree Law & Property Rights

abstract photo of a tree growing out of a book
About Tree Law & Property Rights

Survey Boundaries & Conflicts Involving Trees

Trees can give your property shade in the summertime, a home for songbirds, and general beauty. But trees also can be a source of tension among neighbors if they’re not properly maintained, drop debris over the fence, or cause other problems. While trees and neighbors can sometimes be a volatile combination, especially among neighbors who generally don’t get along, it’s important to know your rights and responsibilities be-fore taking drastic measures.

The following are answers to some frequently asked questions about disputes involving neighbors and trees, including the right to trim encroaching branches and how trees relate to (and sometimes define) property lines.

If my neighbor’s tree branches hang over my yard, can I trim them?

Yes. By law, you have the right to trim branches and limbs that extend past the property line. However, the law only allows tree trimming and tree cutting up to the property line. You may not go onto the neigh-bor’s property or destroy the tree. If you do harm the tree, you could be found liable for up to three times the value of the tree. Most trees have a replacement value of between $500 and $2500. Ornamental or landmark trees can have a value of between $20,000 and $60,000.

If my neighbor owns a fruit tree, and the branches hang over my property, can I eat the fruit?

No. The fruit of the tree belongs to the owner of the tree, so don’t pick any of the fruit. Courts are divided on who can have fallen fruit, however, so check your local laws to see if you can eat any fruit that falls off the tree.

If my neighbor’s leaves keep blowing into my yard, do I have a good nuisance claim?

No. Leaves are considered a natural product. Even if the leaves cause damage, like clogging your gutters or pipes, you have no legal claims against the owner of the tree.

If, however, the tree branches that are shedding the leaves are hanging over your yard, or the tree trunk is encroaching on your property, then you have a right to trim those branches up to the property line.

Most of a large tree hangs over my yard, but the trunk is in the neighbor’s yard. Who owns the tree?

The neighbor owns the tree. So long as the tree trunk is wholly in the neighbor’s yard, it belongs to the neighbor.

When the tree trunk is divided by the property lines of two or more people, it is referred to as a “boundary tree.” In the case of a “boundary tree,” all of the property owners own the tree and share responsibility for it. Tree removal without the consent of all the property owners is unlawful.

My neighbor dug up his yard, and in the process killed a tree that’s just on my side of the property line. Am I entitled to compensation for the tree?

Anyone who engages in tree removal, tree cutting, or injury to the tree without the owner’s permission is liable for compensating the tree owner.

A storm knocked down my neighbor’s tree limb onto my property, damaging my house/car/swimming pool/yard furniture. Is he responsible for the damages?

The court will probably apply a reasonable care standard. If your neighbor took reasonable care to maintain the tree branch, and the tree branch did not seem to a reasonable person to be threatening to fall, then probably not. If a reasonable person could not have avoided this from happening in any way, then it will be deemed an “Act of God,” and the neighbor won’t be liable.

On the other hand, if the tree was not properly maintained and your neighbor knew or should have known that the tree or its branches posed a threat, then your neighbor could be liable for the damages caused.

My neighbor’s tree looks like it’s going to fall on my house. What should I do?

Landowners are responsible for maintaining the trees on their property. Legally, they have two duties:

  1. Make reasonable inspections and take care to ensure the tree is safe. If your neighbor doesn’t remove the dangerous tree.

  2. The tree does in fact cause damage, your neighbor can be held liable.

If you’ve spoken to your neighbor about the tree issue, and he hasn’t done anything about it you do have laws that protect you. The tree may constitute a nuisance, by interfering with your use and enjoyment of your own property. You could file a nuisance claim, and if the court finds that the true is a nuisance, the court may order the tree removed.

Most cities have ordinances prohibiting property owners from keeping dangerous conditions on their property. If you call your municipality, they may remove the tree themselves or order your neighbor to do it.

Utility companies may also have an interest in the tree’s removal if the tree’s condition threatens any of its equipment or causes a fire hazard. A simple call to a utility company may prompt them to remove the tree themselves.

The spreading of tree roots on my land damaged my neighbor’s septic tank/swimming pool. Do I have to compensate my neighbors?

In most states, the bothered neighbor can engage in the tree trimming or root cutting herself, and doesn’t have a claim against the tree owner. Other states provide that neighbors may sue if the following conditions are met:

  • Regardless of if there is property damaged, a landowner may sue her neighbor to make that neighbor trim the branches that encroach the landowner’s property.

  • Serious harm caused by encroaching tree limbs or tree roots may give rise to a lawsuit. “Serious harm” usually requires structural damage.

  • If an encroaching tree was planted, not wild, the neighbor may sue. A neighbor may only sue if the tree is noxious. “Noxious” means that the tree must be inherently dangerous or poisonous, AND the tree must cause actual damage.

Where can I go for expert legal advice with a conflict involving trees and neighbors?

Resolving issues with neighbors and trees requires a delicate touch. A lawyer can review the facts and provide information tailored for your specific circumstances and local laws. Before taking action into your own hands, you may want to reach out to an experienced real estate attorney in your area.

Recognizing Property Boundaries by Witness Trees

A major responsibility of owning and using land is knowing where the boundaries to the property are located. For some uses, it is important to know exactly where the boundary line is to avoid damage or disturbance to your neighbor’s property, such as at time of timber harvest. Only a licensed land surveyor can establish a property boundary; however, if the owner has a good modern survey description they may be able to locate the property based on evidence and marking customs purposefully left behind by the land surveyor.

Each property should have some form of written description recorded at the courthouse in the county where the property is located. The condition of the description will depend greatly on the time frame; older descriptions (prior to 1970) could have been created with less accurate equipment. This can affect the quality of the description and the ability to use it for guidance. The first step is to obtain the best description possible of the property boundaries. This information will include the line direction, distance of each line section, and a description of the monument or corner at each turn. One can use this information to assist them as they are searching for property lines. For the purpose of this article we are going to assume the owner has an ac-curate modern survey and the lines and corners have been marked by the surveyor.

When in the field, the first step is to locate a known corner or monument. The corner is the intersection of two lines where a change in direction occurs. Corners can be a monument consisting of a variety of objects, including but not limited to, rocks, living trees, stumps, metal pipes, rebar, points in a road, old axels, ...or even a fork in a stream. This is why it is important to have that written description so you know what you are looking for at the next turn! Surveyors sometimes witness corners to make them easier to locate in the future or if the actual marker is accidentally removed. Witness trees can also be called “pointers” as the marks on the tree face or point to the corner. A common custom for a corner witness mark is 3 parallel lines about equal distance apart that face the corner on the ground. The witness tree is usually just a short distance from the actual corner, typically less than 5 feet away. These can be painted bars on the tree or axe hacks in the tree. Surveyors use hacks or chop marks in the tree because when the tree heals a scar will remain. This scar can remain visible for decades as evidence to the location of the boundary line. Paint is easier to see, however, it will fade and wear off over time so a combination of paint and hack marks can be the best method to ensure long term survival of the marks. If the actual corner is a standing and living tree, the description will usually name the species of the tree and it will be marked with the same 3 bar marking; how-ever, the 3 bars will be on the side of the tree the line enters and then another 3 bars will be on the side and direction the new line exits the tree with the understanding the corner point is the center of the tree.

Property boundary line sections can be very long so marks along the line between corners are useful as well. These can be markings on trees along the line or post that are set in the line to mark the line location but not a turn. Tree markings in a line are called side line hacks or chops. These too can be painted bars or axe marks. Marks made along the line should face the actual line and be made in a way when observed to visualize the path of the boundary line. Common custom is for single bars to painted along the line approximately 3 inches wide and 1/3 of the diameter of the tree at breast height facing the actual line. Axe chops are usually 2 parallel chop markings facing the line location. If a tree located is directly in the path of the line, a vertical painted bar or 2 chops marks will be on the side of the tree the line enters and another marking will be on the opposite side of the tree where the line exits. This is called a fore and aft marking. Sections of line with really small trees or no trees may have post installed in the line to make the location more obvious. These markings can occur at different intervals along the line. When having a line marked, it is a good idea to ,at minimum, be able to easily see from marked object to marked object, the necessary distance will vary with terrain and density of vegetation in the area.

Helpful devices to have when locating marked boundary lines include a sighting compass that is a quad-rant layout. This is how most survey descriptions read in degrees from north or south toward east or west. A distance measuring device like a hip chain can also be helpful to know when to stop and start looking for a corner. It is usually easiest to try to locate lines in the winter as well, when the foliage is not present. Do not attempt to mark an unmarked line (only a trained professional can do that), only maintain marks already in place.

Finding boundary lines that have good evidence can be enjoyable and helpful. Once located it is wise to maintain with paint every 6-8 years to keep the marks fresh and easy to locate. Marked boundaries are a first sign of good land management – they protect the owner from encroachment and trespass, limit the potential for an adverse possession claim, make timber sales easier to prepare, and reduce the potential for accidental timber theft when a neighbor harvests trees. American Forest Management can assist landowners with locating their already surveyed lines and with maintaining them with paint periodically as well.


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