Case of the Day – Friday, August 31, 2018

THE MORE OF THE TREE YOU OWN, THE FEWER RIGHTS YOU HAVE

The rule regarding ownership of boundary line trees is a strange and malleable one. We often call it a tenancy in common, but it really is something different. In a tenancy in common, one of the owners can partition the property, taking a piece of it and leaving other pieces for the others. The owner can force a sale of the property.

An owner of an undivided piece of the tree can’t partition the tree, cannot sell the tree, and cannot destroy the tree. In fact, under the generally-accepted boundary tree rule, neither landowner can do anything to the tree without permission of the other.

Thus, a tree growing on Landowner A’s property, but with branches overhanging Landowner B’s property can have its branches trimmed, hacked and cut by Landowner B back to the property line. But the day the tree’s trunk crosses the property line, suddenly Landowner B can’t take the puniest bough with the permission of the other.

A landowner has more right to trim an encroaching tree when the trunk is entirely in someone else’s yard than she does when a part of the trunk is in her own yard. In other words, the more of the tree you own, the fewer rights you have with respect to the tree.

That does not make sense.

Strangely enough, about the only place that recognizes how nonsensical that result can be is Connecticut, a state where a lot of what goes on does not make sense. In a case that is now over 110 years old, the Connecticut Supreme Court held that where a tree is commonly owned – and the Court did not want to call it a tenancy-in-common – each owner retains Massachusetts Rule-type right to trim overhanging branches. It is only the trunk that is sacred.

Robinson v. Clapp, 32 A. 94, 65 Conn. 365 (Supreme Court Connecticut, 1895). Through a convoluted chain of purchases, sales, partitions and events, the boundary line dividing two urban residential properties in turn-of-the-century New Haven, Connecticut, belonging to John Robinson and John Clapp bisected a 40-year old maple tree.

The tree was valuable to Mr. Robinson as a shade tree and ornament, and shaded a part of his premises. Mr. Clapp intended to build a house to extend down along the boundary line for a distance of 58 feet from a point about 6 feet from said Bradley street, which would require removing the part of the maple tree in his yard. The proposed tree cutting would kill the tree.

At the time of both men bought their respective properties, there was no fence or other visible sign of demarcation marking the boundary line. However, Mr. Clapp had previously lived within 100 feet of the premises, and was fully acquainted with the boundaries.

The trial court granted Mr. Robinson an injunction preventing Mr. Clapp “from such interference with the tree mentioned in the complaint as will destroy or injure the same…”

Mr. Clapp appealed.

Held: Mr. Clapp could be enjoined from cutting any of the trunk, but he was free to trim all limbs that overhung his property.

The Court held that trees which stand wholly within the boundary line of one’s land belong to him, although their roots and branches may extend into the adjacent owner’s land. However, the adjacent owner may lop off the branches or roots of such trees up to the line of his land.

However, if the tree straddles the boundary line, the Court observed, prior law held that “the same is the property in common of the landowners. And neither of them is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the tree.”

The Court thought this was balderdash. “It must be apparent that the very nature of things differentiates such a so-called common interest in a tree from an ordinary tenancy in common, either of real or of personal property. In the case of a tree like the one in question, yielding no fruit, of trifling value for wood, if cut, of no value while standing, except for ornament or shade, what relief by any remedy, legal or equitable, provided for ordinary tenants in common, can a part owner of such tree, to whom its continued existence is of no advantage but an injury, obtain? Can he call upon the other part owner to account for the benefit which he has derived from such ornament or shade? Could he, in this state, procure a partition of the growing tree as real estate, under Gen. St. § 1304? And if he did, would not the lines of his own and the adjacent land divide the tree as they did before, leaving the rights of the parties identical in effect with what they were before? Could he obtain a sale of the tree under section 1307, either as real estate or personal property, that would carry the right to have it destroyed or removed? If it be conceded, as it must be, that he could do none of these, it will be evident, we think, that the tenancy in common in a tree is of a peculiar nature, if there be such a tenancy at all.”

Rather, the Court concluded that each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree equal to the part of the tree which is upon his land. Each owner the right to demand that the owner of the other portion use his part as not unreasonably to injure or destroy the whole.

The Court decided that this right did not include any hacking away at the trunk. Instead, the Court ruled that “where the branches of a tree extend over an adjacent owner’s land, he may lop them off up to the line, even though that were practically to the trunk of the tree.” Thus, “the injunction should not extend further than to restrain the defendant from cutting any portion of the trunk and any further cutting of the branches or of the roots than he might lawfully have done had the trunk stood wholly upon the plaintiff’s land, but reaching to the defendant’s line.”

– Tom Root

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