A friend of mine is a lawyer in Mexico. When we exchanged lawyer jokes he told me a story about a lawyer who was contacted by a client. A neighbour's cow, while standing on the property line, gave birth to a calf which fell on to the client's property. The client wanted to know whose calf it was and the lawyer replied that it was the client's calf as it was born on the client's property. A little later on, the lawyer was approached by another client who said that his cow had delivered a calf on his neighbour's property. He wanted to know whose calf it was. The lawyer replied that the calf was his because it was delivered by his cow. As the second client departed, the lawyer's secretary asked if there was some mistake. The lawyer replied "Keep this quiet. The calf can be ours".

While it is really not the nature of lawyers to stir up disputes the story does raise an interesting question. Most often, the issue turns on trees with overhanging limbs or encroaching roots or trees which fall down.

There is no obligation on the part of an owner of a tree to cut the overhanging limbs or undergrowing roots, but the neighbour has the right to cut them. However, if the tree's life is endangered by the cutting, that may be unreasonable and unlawful in itself. Assuming that the tree is not endangered, the neighbour can trim the branches back to the property line. Who owns the branches? The answer is that the branches are the property of the owner of the tree and should be delivered to the owner if he or she wants them. Failing any such expression of desire, the branches should be delivered to the owner of the tree as tidily as possible.

The question of encroaching roots is not so simple. Roots usually become a problem when they insinuate themselves into drainage tiles and cause flooding or backup or when they cause a patio to heave and crack. Would the owner of the tree be responsible for this damage? The answer lies in examining the law of nuisance or the law of negligence. If the owner of the tree had planted it near the property line and it was the sort of tree known to have rapidly growing roots (such as poplar or willow) then there might be some liability on the party of the tree owner. It may be that he should reasonably have considered the damage from roots when he planted the tree so close to the neighbour's property. This would be particularly so if he had knowledge of the drainage tiles or the patio. Liability for negligence could result. The law of nuisance deals with the use of one's property in such a way that it unreasonably prevents the enjoyment by a neighbour of their property. In either case, a tree that was there before the houses is unlikely to result in liability. A tree that was planted subsequently and within the danger zone of the neighbour's drainage tiles or patio could result in liability.

Trees being what they are, they often drop things. These things may consist of sap or limbs. If sap consistently falls on the neighbour's car the neighbour will become annoyed. If the tree is very old and predates the neighbour's parking pad then the tree owner is not responsible. The same may be said for a falling limb provided that the tree owner had no knowledge of the state of the limb and it could not be expected that he would reasonably have such knowledge. However, a fast growing tree planted next to the neighbour's parking spot could result in liability for any damage. If the property on which the tree is located is kept in a wild and natural state then the responsibility imposed upon the tree owner is lower than would be the case in a carefully trimmed garden.

Finally, local bylaws may deal with tree cutting and trimming. We value trees so much that sometimes one must get council approval to trim or cut them. There are even instances of municipal councils refusing to grant such consent even in the face of professional reports pointing out the potential danger of falling limbs. It may be that the municipal council is exposing the municipality to liability if it prevents the property owner and neighbour from doing the prudent thing and damage results.

In Canada, as in Mexico, the question of overhanging limbs is not a simple one to answer. If a common sense approach is not taken, the remedy could be very costly to the parties.

Please call or e-mail me with questions or comments you might have.