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Self-Help Remedy for Encroaching Branches or Roots

Self-Help Remedy for Encroaching Branches or Roots

Dawn maintained a peach orchard on her property. In order to derive the most profit from her land, Dawn planted her peach trees densely, right up to her boundary line. As a result, some of the limbs of the peach trees hung over the property of her neighbor, Jim. Jim would like to prune back some of Dawn’s peach trees. Furthermore, he would like to help himself to some tasty peaches. What are Jim’s rights?

Generally speaking, a property owner may cut back branches and roots that stray onto the property owner’s land. The right of self-help, as it is called, is not found in state law, however; it derives from the common law. The rationale behind the right of self-help is that, to the extent possible, property owners should be able to protect their interests without the necessity of resorting to the courts. With regard to fruit and nut trees, the location of the trunk of the tree determines who owns the tree. While the law is somewhat unclear, it appears that the property owner who owns the tree also owns any fruits or nuts that grow from the tree. Thus, a neighbor in Jim’s position probably has no legal right to the fruit at issue; however, Jim does have a right to trim back any offending branches. In such circumstances, though, it appears that Jim must turn over any fruit on such branches to Dawn.

Does the Right of Self-Help Have Limitations?

The right of self-help is not without limitations. A property owner who engages in the self-help remedy of trimming back encroaching branches or roots must:

 

  • not trim beyond the boundary line of the property owner’s property; and
  • take care not to injure the tree by trimming.

And, to the extent the property owner needs to enter onto the property of another in order to complete the trimming, the property owner must obtain permission to do so.

First Things First

As an initial matter, a property owner who is troubled by an encroaching tree should consider talking to the owner of the tree. It may be that the parties can agree to split the cost of a professional tree service or work on the trimming together. In that way, both parties can take an affirmative role in remedying the problem. In the fact scenario described above, Dawn may agree to share some of the peaches from her trees with Jim.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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