EVERY RULE HAS AN EXCEPTION
It’s a great old saw, but as logicians like to point out, “every rule has an exception” is a logical fallacy. As if anyone could possibly know every rule, so that he or she could be sure that every rule had an exception (sort of like the people who claim no two snowflakes are alike: how could they possibly know that?).
But beyond that, if every rule has an exception, then the rule that every rule has an exception itself has no exception, in which case every rule does not have an exception. It’s enough to make your head throb.
But all we care about here are rules in tree law. If there is any rule that seems immutable, it is the rule that a boundary tree belongs to the owners of both properties on which it is growing. No owner can do anything to trim or kill the tree without the permission of the other owner. Boundary Tree Law 101 right?
Well, yes, but for the exception. In today’s case, one property owner ignores the warnings of the other, and excavates for a basement, only to sever the roots of the big, beautiful boundary oak tree. The court agreed with the aggrieved plaintiffs all the way, except at the end, where the Supreme Court said, “Sure, that’s the rule… but there’s an exception.”
The exception is that if an owner harms or kills the tree while using his property in a reasonable way, the other owner is without recourse.
Does that tiny little exception look big enough to drive a truck through?
Amazingly enough, this decision remains good law in Oklahoma.
Higdon v. Henderson, 304 P.2d 1001 (Supreme Ct. Okla, 1956). The Higdons filed their petition seeking damages for the destruction of a shade tree they said was located on the lot line between their property and that of John Henderson. They said it had been a large towering oak tree which was a valuable shade tree for both lots. They claimed John had been building his house when, over their objections, he excavated a basement, cutting the tree’s roots and killing it.
John argued the Higdons could not recover, because their complaint did not say to whom the tree belonged, and at any rate, they did not state a claim on which they could collect. The trial court agreed, and the case ended up in the Oklahoma Supreme Court.
Held: Identifying the tree as a boundary tree was good enough, but the Higdons could not collect for Henderson’s killing of the tree.
The Court acknowledged the general proposition that “trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.” The Higdons’ complaint referred to the tree as a boundary tree, and that was quite adequate to identify common ownership of it by John and the Higdons. The Court acknowledged the general proposition that “trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common.” The complaint referred to the tree as a boundary tree, and that was quite adequate to identify common ownership of it by John and the Higdons.
The Supreme Court also agreed with the Higdons that because the tree was standing on the boundary line, it was the common property of both owners, so neither had the right to damage or destroy the tree without the consent or permission of the other. But, the Court said, that rule is “qualified by the right of an abutting owner to use his property in a reasonable way and conversely, not in an unreasonable way.”
Here, the Higdons complained that John was building a house. This is not an unreasonable use of the property, the Court ruled. Therefore, the resulting incidental injury to the tree did not give the Higdons a right to recover damages.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 