Trespassing Trees? How to Remove Natural Encroachments (Without Going Out on a Limb)
By Matthew M. McKeon
With a roar of their trimmers’ two-stroke engines, a husband and wife advance across their yard toward the mass of hemlock branches spilling over from their neighbors’ property. They trim the branches hanging over their yard all the way back to – but not over – the property line. Weeks later, their neighbors sue them for damaging the trees. Was the couple within their rights when they trimmed the branches?
Yes, held the Pennsylvania Superior Court in Jones v. Wagner, the case from which our lightly fictionalized couple are drawn. In Jones, the court addressed the scenario where a tree is located on an owner’s property but its branches or roots hang above or encroach onto the property of another person (who we’ll call an “affected owner”), and what affected owners can do in response.
The Court began with the principle that a continuing trespass occurs if the branches of a tree located on one owner’s property overhang the property of another person without the affected owner’s consent. The same principle applies where the roots of a tree on one property extend onto the affected owner’s property. Often, an affected owner sees no reason to take action. Affected owners like those in Jones, however, may want the branches removed for any number of reasons.
The Court in Jones held that affected owners who want overhanging branches or encroaching roots removed have a few options.
First, an affected owner may file a lawsuit alleging continuing trespass. The affected owner will need to prove both the location of the property line and the branch’s or root’s location over that line. The complaint would request that the court order the owner of the tree to remove the branches or roots to the extent they hang or encroach over the property line. The affected owner should also request money damages for any harm suffered or costs incurred because of the trespass, although a showing of harm is not necessary to prove trespass itself. The downside to lawsuits are that they are expensive and can take a long time – often years – to resolve.
Second, an affected owner may – like those in Jones – simply trim the branches or roots back to the extent they hang over or encroach onto their property. This remedy is referred to as “self-help.” Self-help is an attractive remedy because, in theory at least, it is quick and cost-efficient compared to a lawsuit. Affected owners exercising self-help must be precise to ensure they are trimming only that portion of the branches or roots which cross over the property line and above or onto their property. Even owners who precisely perform self-help still risk being sued by the owner of the tree, especially where there is disagreement as to the location of the property line or the branches or roots that are removed. For these reasons, affected owners who plan on exercising self-help should still consult an attorney before acting.
Finally, affected owners may exercise self-help and then also sue the owner of the tree for the expenses incurred in removing the branches or roots. Given the cost of lawsuits, an affected owner considering this combined remedy should consult with an attorney to confirm that the expense of lawsuit will not exceed the expenses incurred removing the branches.
Property owners involved in tree-related disputes or have questions about liability for damage caused by their tree or a neighbor’s tree should contact an attorney with experience in these matters. You may contact Matthew McKeon at [email protected], or by telephone at 610-840-0225. This article provides a general overview of the law. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.