BS: Cutting branches off a tree.

Subject: BS: Cutting branches off a tree.
From: An Buachaill Caol Dubh
Date: 01 Jul 11 - 11:20 AM

I wonder if any people here can help me with two queries.

Recently, my elderly mother was approached by a neighbour, who intends to build an extension to his house.   According to what she later told me, he asked if he could cut some branches from a Rowan (Mountain Ash) tree which were overhanging his garden, as I believe he is legally entitled to do. She agreed, and these branches (only) were cut, about a month ago. However, on returning yesterday from a week away with relatives, she discovered that every other branch had also been cut, and the wood/foliage simply left piled, where it had fallen, in her garden. There is not a leaf left on the tree, what's left of it anyway.   

My queries are these; first, will the tree now die? Secondly, can someone just get away with this, or is there any way in which he can be compelled to make some form of restitution, such as removing the remainder of the bole and planting a replacement sapling?   I should add that my mother is now most apprehensive about this neighbour's actions and attitude. She lives in Scotland, incidentally.

Subject: RE: BS: Cutting branches off a tree.
From: gnu
Date: 01 Jul 11 - 11:30 AM

I thought youse settled disputes with golf in Scotland. If you can find out what kinda club Tiger Woods' wife used, I'd go with that one.

Subject: RE: BS: Cutting branches off a tree.
From: pdq
Date: 01 Jul 11 - 11:32 AM

In the US, the neighbor in entitled to cut off any part of a tree that is over his yard. Imagine that the fence on the proprty line goes up to infinity. The airspace over the neighbor's property is his.

Call the police and have them take photos. Take you own photos of the tree and the debris he left.

He can probably cut the tree without asking pemission and dump the branches in your yard, but in doing so must not cause damage to other plants or buildings. If he did cause damage, sue him. If the tree dies he is in big trouble. Killing a tree on someone else's property can result in automatic "triple damages" in some areas. Our laws are based in English Common Law also.

Subject: RE: BS: Cutting branches off a tree.
From: Ebbie
Date: 01 Jul 11 - 11:46 AM

"He can probably cut the tree without asking pemission and dump the branches in your yard, but in doing so must not cause damage to other plants or buildings."

That doesn't follow. The neighbor, by US law, can legally trim/cut back any parts of a tree that overhang into his airspace- true. But he cannot pull more branches over to his side in order to cut them. He cannot go on another's property in order to cut more branches, including branches on the far side of the tree, which action is implied in the recounting.

Subject: RE: BS: Cutting branches off a tree.
From: Jim Dixon
Date: 01 Jul 11 - 11:48 AM

Oddly enough, there recently was a case almost exactly like this on "The People's Court" a popular daytime TV show in America. (Or maybe it was "Judge Judy." I sometimes watch them both!)

I believe the law on this in the US goes back to English Common Law and is probably the same everywhere.

The neighbor has the right to cut whatever branches overhang his property. He doesn't need to ask permission (but a polite person would at least notify you of his intentions and show that he understands the law). He then has the responsibility to dispose of the cut branches, or at least keep them on his own side. He does not have the right to cut more than this.

In the case on TV, the judge ordered the defendant to pay for replacement trees. However, the plaintiff didn't get as much money as she asked for; the judge decided the trees weren't worth as much as the plaintiff claimed.

As I recall, a mountain ash is a relatively short-lived tree to begin with. I used to have a couple.

Subject: RE: BS: Cutting branches off a tree.
From: gnu
Date: 01 Jul 11 - 12:09 PM

Have you asked other neighbours if they saw anyone cutting the branches while your mum was away?

Subject: RE: BS: Cutting branches off a tree.
From: Jack Campin
Date: 01 Jul 11 - 12:10 PM

For somebody in Scotland, English (or American) common law as as irrelevant as Mongolian tribal justice.

The tree probably won't die, since rowans put out new shoots easily. But it will take many years to recover, and your mother probably won't live to see it grow back to anything like what it was.

Googling "scots law tree overhang" suggests this is something that's going to need a lawyer.

Subject: RE: BS: Cutting branches off a tree.
From: Jim Dixon
Date: 01 Jul 11 - 12:32 PM

The only difference I can see is that in Scottish law the branches are presumed to have some value and are considered the property of the tree owner, and must be returned to him, unless he says he doesn't want them.

From http://www.treewarden.org.uk/treelaw.htm (The site is sponsored by the City of Edinburgh Council):

Branches:- The title of a property includes not only the soil on which the property stands, but also all that is above and below it. With few exceptions (e.g. passage of aircraft) the owner is therefore entitled to the uninterrupted right of the air above the land. On this principle, therefore, the branch of a tree which overhangs a neighbour's land is an infringement of his rights, and, although it may cause no actual harm, is considered in law to be a special kind of nuisance. The tree owner is not obliged to cut back the overhanging branches, but the person whose property is overhung has the right to cut back the branches to the boundary to remove the nuisance. This is known as abatement (care is needed if the tree is protected, see Tree Preservation Orders). Although there is no obligation to ask the owner's permission or give notice of any intention to cut back, it would be good neighbourliness to discuss the problem in a friendly way with the owner first - it may be possible to obtain help or agreement to remove more than was envisaged.

If pruning is carried out without the owner's permission it is important not to enter property, or for equipment to cross the boundary - for example it may be illegal entry to lean a ladder against the trunk of a tree as an aid to cutting a branch if the trunk is on the other side of the boundary. Even after removing branches, the prunings remain the property of the tree owner and therefore the branches, fruit, leaves and cones cannot be put to use without the owner's permission. To do so would constitute an offence known as conversion i.e. appropriation of the owner's property. Nor should material simply be burned or disposed of because it appears to be of no use. The material may be returned to the owner's property, but if doing so causes damage (e.g. by throwing branches over the fence and damaging the owner's conservatory) there may be a liability to pay for the damage. But if the owner gives notice (preferably in writing) that he does not want the material then it may be disposed of. However, there is no precedent for recovery from the owner of the expenses incurred in disposing of the residues.

Subject: RE: BS: Cutting branches off a tree.
From: Jim Dixon
Date: 01 Jul 11 - 01:22 PM

You also have the problem of evidence.

What if the neighbor either (a) denies that he cut the branches; or (b) claims that your mother gave him permission to cut the branches?

If it comes to your mother's word against the neighbor's, I would say your mother already has a slight preponderance of evidence on her side. It's simply a lot easier to believe that the neighbor violated your mother's rights than that some unknown person cut the branches, or that your mother would give permission and later deny that she had done so (unless your mother is very forgetful).

But it would be good to have additional evidence.

Take pictures as soon as possible, showing the tree in its present state, the branches on the ground, and the area where the neighbor wants to build his addition, if it's visible from your mother's property. And if possible, find some pictures of the tree before the branches were cut. It would also help to have a written opinion from a tree expert about the value of the tree before and after the trimming, and what its prognosis is.

It would be great if you could somehow entice the neighbor to put some admission in writing. You, An Buachaill, are in a great position to do this. If you can somehow get the neighbor's email address, send him an email saying that your mother said that "something happened" to her tree but you don't quite understand what it was. Ask him if he can explain. Try not to tip him off that you are gathering evidence against him.

If you're lucky, your neighbor will readily admit what he did. He might even believe (erroneously) that he had a right to do it or that he was doing your mother a favor.

In the US, in small claims court, emails and even phone text messages are readily accepted as evidence, and many a defendant has been convicted by his own words.

Does Scotland have some equivalent to our small-claims court, where neither the plaintiff nor the defendant is allowed to bring a lawyer?

Subject: RE: BS: Cutting branches off a tree.
From: pdq
Date: 01 Jul 11 - 01:57 PM

Definitely take many photos of the tree, the debris pile and any damage that may have been done as a result of the dumping of the branches.

Get witnesses, photos and all the documentation you can gather before you go to court.

There is no way he can legally cut a neighbor's tree until is "There is not a leaf left on the tree..." unless she gave him explicit permission.

The case will probably be around the extent of the permission she gave, but permanent damage or death of the tree would still be negligance or worse.

Subject: RE: BS: Cutting branches off a tree.
From: Jack Campin
Date: 01 Jul 11 - 02:43 PM

There are small claims procedures in Scotland (not separate courts) but this seems a bit more serious - really she needs to stop the neighbour doing more of the same, not settle a one-off damages issue. (A new rowan tree a few feet high might be 20 or 30 quid, not worth hassling over). That is why a lawyer might be an idea. "Neighbour from hell" cases require more than simple procedure-following to deal with.

Evidence in Scots law is different from England or the US. You need corroboration of every item of evidence used in court. There is no relaxation of evidential standards just because the case is over a small amount.

I would be inclined to forget about the courts and look at the planning issues around that extension. If the guy's damaging her property in its construction, she probably has grounds for getting it refused and maybe even requiring demolition of what's already been done.

Subject: RE: BS: Cutting branches off a tree.
From: pdq
Date: 01 Jul 11 - 03:07 PM

To determine the true value of a landscape tree, you need to talke into consideration how much an attractive tree adds to your property value. A real estste agent's signed statement is a good place to start.

The replacement cost of a large tree is sustantial. There are companies which place large "specimen trees" around apartments and businesses, also in street landsacaping. Cost would be $5000 or more for a 20 ft. tree.

The owner who lost the tree is entitled to and equivalent tree or equal compensation.

As I said, killing a neighbors's tree results in automatic trippling of damages in some jusisdictions, so $5-15,000 is not really a small claims court matter. Neither is repeated tresspassing.

Subject: RE: BS: Cutting branches off a tree.
From: An Buachaill Caol Dubh
Date: 02 Jul 11 - 11:22 AM

Thanks for all these responses. I've already taken some photographs, and, since my mother is on good terms with neighbours (she even buys Christmas and Birthday presents for children), I'm hoping that someone will have seen something in the last week. I think the claim that someone unknown took it upon themselves to cut off the remaining branches would be found preposterous (who would go to that trouble for a few dozen branches and no further payment, after all?). Thanks especially, Jim Dixon, for the link provided. As far as I know, by the way, in the Scottish small-claims court, the plaintiff can bring a lawyer but, if the sum at stake be less than a certain amount (which I don't know, and in this case the issue is less about any money than about violation of property and putting an elderly lady into "a state of fear and alarm"), then the defendant cannot get a lawyer/solicitor to represent him. By the way, the house-name is "Rowandene", and I do have a letter from my late father in which this title is written at the top of the page, before the house-number &c. This, I should think, establishes that the tree was of some significance to them.

Subject: RE: BS: Cutting branches off a tree.
From: GUEST,leeneia
Date: 02 Jul 11 - 02:11 PM

It sounds like your mother had a soft, messy tree growing too close to her property line. It may have grown from a seed dropped by a bird, and it probably should have been yanked out of the ground as a sprout.

If you want to have a rowan, with its soft fruit to the birds, then it needs to be planted where it will not drop fruit or branches on a person, path, car or building. This means not close to a neighbor. And consider too, what kind of birds it will attract. Thrushes and waxwings are one thing. A hundred squawking starlings are another.

In my neighborhood people sometimes let mulberry trees grow big. They too, are supposed to feed the birds. Mostly they produce purple sidewalks and lots of flies. They too, should have been pulled out as sprouts.   

The internet says that rowans interbreed freely with other members of the rose family. Volunteer plants will be variable. So if you want a good one, go a nursery and buy a good variety with a predictable shape and size, pretty flowers and lots of color.

If your mother's place were mine, I would hire somebody to remove the rest of the existing rowan tree and take away the debris. If that can't be done, stack the wood up neatly and let it compost away. And if she really loves a rowan, buy her a good one and plant it in a good spot.

I'd probably give up on the Christmas and birthday presents, too.

Subject: RE: BS: Cutting branches off a tree.
From: Jack Campin
Date: 02 Jul 11 - 02:22 PM

We have a rowan - it's grown as high as the house in ten years. No need to worry about dropped fruit. Sometime early in winter, it all vanishes in a single night. I've only once seen the birds responsible - probably a reconnaissance team that went back to the hills and brought the main force down.

Rowans are a very common tree in Scotland, with a long tradition behind them (you need one if you have an infestation of witches). You can get special varieties but the ordinary feral ones are the commonest. They're good enough for the Queen - the grounds around Holyrood Palace have hundreds of them.

Subject: RE: BS: Cutting branches off a tree.
From: Jim McLean
Date: 02 Jul 11 - 04:28 PM

I suspect your mother's neighbour will suffer the consequence of destroying her rowan tree, beware of the witches' curse.
My father planted a rowan tree years ago when they moved out of their tenement into a new housing scheme. He was adamant it would protect them from evil.

Subject: RE: BS: Cutting branches off a tree.
From: GUEST,Jon
Date: 02 Jul 11 - 04:49 PM

I really like the rowan tree. We have one that set itself (not sure whether it was there when Pip moved here in 199? or not but it certainly wouldn't have been planted there) in one of the old pigsties (pen part) in the field. I'm sure we could use the area it occupies for something else but it looks really good where it is.

I've not noticed an overnight raid of berries Jack mentions but it most certainly does provide food for the bird.

--
On overnight raids, when I lived in N Wales, we had a walnut tree. Every year, I hoped to get some walnuts but it was almost like the squirrels knew - sort of "they are going to harvest these soon - we'd better get in first!".

Subject: RE: BS: Cutting branches off a tree.
From: Jack the Sailor
Date: 02 Jul 11 - 04:56 PM

Lots of advice some of it odd. Here is my take.

"She agreed, and these branches (only) were cut, about a month ago"

Good, As it should be.

"However, on returning yesterday from a week away with relatives, she discovered that every other branch had also been cut, and the wood/foliage simply left piled, where it had fallen, in her garden."

Creepy and very bad. Can she prove that the neighbour did it? As you said she can ask the other neighbours. Is there any reason she cannot, in the presence of witnesses ask the neighbour she suspects?

I don't think that the neighbour would get away with saying he had permission. According to the first post He did what he was given permission to do before she went away. The first thing She should do is ask the dude if he cut her tree up. If he says yes, inform him he was trespassing and ask for restitution. Call an arborist and get a quote for the amount. If he says "no" he didn't cut it down, ask the other neighbors if any of them witnessed him (or his agents) doing it if you can't get anyone to step up as a witness, let the matter drop. In any case if he does not agree to restitution, report the incident to the police as an act of vandalism.