Consulting Arborist Corner- Boundary Trees

Whose Tree is it Anyway?

Your client wants a new fence, but as your crew begins building it, there is a root in the way. They grab the chainsaw and lop off a portion of the root, so the fence rail will run straight.

All of a sudden the neighbor comes running out, waving a broom, and screaming, “Get away from my tree! I just called the police! You guys are trespassing!”

Does this scenario sound familiar? You had measured the tree and it is straddling the property line between your client’s property and the neighbor’s property; so what is the big deal?

You need to know that Indiana courts have determined:

[I]f the trunk of a tree is wholly or in part upon the line dividing the land of an adjoining owner, it is the common property of both; and it has been held that the property interest of each owner is identical as to the extent the portion of the tree is upon his land, and that where a tree is thus owned in common, neither party has the right to cut or injure the same without the consent of the other, and if he does, he will be liable for damages therefor. Luke et al. v. Scott, 187 N.E. 63, 64 (Ind. Ct. App. 1933).

So what does this mean? While the exact definition of “trunk of a tree” can probably be debated in the field, if any part of a tree spans the boundary line between your client’s land and the neighbor’s property, you need to ask before you cut. This tree could be common property of the adjoining landowners – which means that even if you and/or your client think the tree is a nuisance, or if it’s in the way of a job, you can’t cut or injure the tree without the neighbor’s blessing.

Save costly delays: As you plan that new landscape feature, be mindful of trees that are possibly “common property.”

“Consulting Arborist Corner” is brought to you by Jud Scott a Registered Consulting Arborist. As a Consulting Arborist, Jud is available to assist you with tree care and tree conflicts that may arise.

The fence installer notched the root flare to install the fence.

Legal commentary by Katherine Welch Rarick, of Bose McKinney & Evans, who may be reached at Krarick@boselaw.com.

~ by daniel on June 19, 2011.

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