Trees Can Be a Nuisance #112

By Gerry Neely
B.A. LL.B

A shade tree that is an object of beauty to the owner of the property upon which the tree stands, may be nothing but a nuisance to the next door neighbour. The neighbour may have to contend with falling leaves, overhanging branches, roots that extend into his drains or the wind driven fall of the tree onto his property.

Since the planting and growth of a tree is a natural use of one's property, what remedies are available to the adjoining neighbour to combat these nuisances? Negligence may come to the neighbour's aid, but the law of nuisance is the principal remedy. Nuisance in this sense refers to a use of one's property which "causes material discomfort and annoyance for the ordinary purposes of life, to a neighbour or to his property."

Can you force the owner of an arbutus tree to cut it down to eliminate the constant raking of both leaves and bark? The answer to that must be no, because a nuisance of this minor nature falls into the rule that there must be a certain amount of give and take, live and let live, between neighbours. The neighbour however may reduce the problem for himself if the arbutus tree overhangs his property. He then has the right to cut that part of the tree which is on his side of the boundary.

What happens where the problem for the neighbour results from the roots of the tree encroaching on the neighbour's property and damage results. Suppose the roots enter the drains and plug them or they damage sidewalks, driveways, or even foundations. Can the owner of the tree say that he is not responsible because he had no reason to believe that the roots were encroaching upon the neighbour's property? This defence to an action for damages has been rejected in several English cases. In one instance, a poplar tree absorbed a large quantity of moisture in the soil under the neighbour's house causing it to sink.¹ In these cases, the Courts held that the neighbour had the right not only to cut the roots of the tree causing the damage, but was entitled to an award of damages. In a New Zealand case, the Court not only awarded damages, but directed the owner of the tree to cut it down.

The remaining and most troublesome source of damage is the tree that falls onto the neighbour's home. In one case a windstorm which evidence indicated could occur once every two years, broke off the top portion of a tree approximately 35 feet above the ground, and it fell on the roof of the adjoining home. While the break occurred because of advanced internal decay and ant tunneling, there was no reason for the tree owner to know that the tree was decayed or dangerous and should have been cut down. There was evidence that the neighbour enjoyed the shade provided by the tree which was very close to the property line, and that the neighbourhood in which the two properties were located, was well treed and homes were normally built among the trees.

The Judge decided that there was no liability because the growing of the tree was a natural use of the property. There was no mention in the reasons for judgments of the cases dealing with encroaching roots. It would be possible and perhaps more likely that another Judge in another case, might decide that there is little distinction between the damages created by encroaching roots, and the damages created by a falling tree.²

	1.	Butler v. Standard Telephones and Cables Ltd. (1939) [1940] 1.K.B. 399, [1940] 1 All E.R. 121 (Eng. K.B.D.).
	2.	Bottoni et al v. Henderson et al, (1978) 90 D.L.R. (3d) 301 (Ont. H.C.).

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