The Surveyor & the Tree—Part One

Tree Law, a Comprehensive Review

A 1.077Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

In the first installment of this two part article, we will investigate the two principal distinctions found in tree law and how they would apply to your client’s particular situation. The second part will deal with different ramifications of tree ownership.

When is a tree not a tree? It could be when you are sitting in the lobby outside the courtroom (with pocketbook $5000 lighter, covering the deductible), sitting and thinking about the last 3 years wasted over some trees. All because, God forbid, the line was run in the wrong place or faulty advice was flippantly provided to the client, who then relied on that flippant advice to do some tree clearing. That’s when a tree is not a tree. No, that is when a tree is a pain in the butt. The purpose of this paper is not to tell the proper method of placing a boundary line but only to share the many, varied and at times contradictory scenarios of trees, the courts and disputes between neighbors.

The Law and the Tree
Years ago, a paper circulated on the Internet that had a remarkable summary of tree law from the beginning with a single sentence decree from early English common law up to current rulings requiring many hundreds of pages. The present body of tree law isn’t necessarily all that complicated to read but it is vast and ever changing. The best advice for the surveyor is to never advise a client on any specifics of tree law outside that surveyor’s level of competency. It can be likened to the laws concerning adverse possession. The surveyor is not required to be a scholar on an adverse claim but does need to know enough to recognize the possibility. You then inform your client the complexities of possessing adversely within your state or to seek counsel with a competent attorney. So it should also go with tree law. Know enough to spot a potential problem and advise accordingly. Disclaimer–the author: is not an attorney, is not providing legal advice, does not represent that the information is current or complete and is not to be held responsible should someone rely on this article for legal advice. When the time arrives, hire an attorney. There is no substitute for solid legal counsel from a licensed attorney.

Why? Well, where would you go to find the law? Tree law is found in a minimum of two forms (no matter one’s jurisdiction): statutory and common law.

Statutory laws are those made by the legislatures of the Federal or various State governments. In many cases, applicable definitions associated with tree law are spelled out only in legislation. A recent trend has been the establishment of minimum amounts of damages for clearing and timbering trespasses. Statutory laws can be subject to the whims of individuals and special interests.

The common law began way back around 1066 AD. Through judges and the courts, the laws have evolved over time with subsequent rulings having as a basis previous existing rulings. Because of the evolving nature of our society and customs, our common law is continually changing in major ways virtually from year to year (within our Constitution).

Those two are the minimum. A third form of law is the local ordinance. These are most subject to the whims of individuals and special interests. A seemingly innocent act can result in the levying of ridiculous fines. You, the surveyor, are your client’s firewall. One of the annoying things about local ordinances is just that, being local; they vary greatly from jurisdiction to jurisdiction. For example, according to an article in Lawyers Weekly, USA, in Mill Valley, California a redwood tree is considered a "heritage" tree with legal protection. One town over, in Sausalito, because of bayside views, the tall and fast growing redwood is designated as "undesirable". Local ordinances can regulate any number of tree issues including maximum heights, boundary fence trees, rights to views and rights to light (solar). It is though, the surveyor’s duty to be familiar with or at least have ready access to the ordinances of the communities in which we practice.

These various forms of law are in a constant state of flux reflecting changing societal conditions.

The Boundary and the Tree
A tree is a large (usually), slowly changing form of life. A tree lives and dies, gets sick, can be subject to malicious injury, can be able to produce sustenance and is capable of taking the life of a human. Yet, a tree can be a valuable and beloved enhancement to any family’s property. Depending on a tree’s proximity with the boundary line, there are two distinct bodies of tree law to be considered. At root (no pun intended) of this distinction is the question does the trunk straddle the property line (boundary tree) or is the trunk entirely on one land owner’s property, discounting roots and branches (borderline tree or solely owned tree)? First, the boundary of the property must be established by the licensed land surveyor. Any action is difficult without this first step. A Colorado damage case for cutting trees was decided for the tree cutter. The guy suing for trespass and damages admitted he didn’t even know where the line was. (129 Colo. 427, 270 P. 2d 765) A similar case in Illinois was decided the other way. The logger didn’t know where the line was but had to cut fences in order to obtain access to the damaged property. (41 Ill.App. 3d 1008. 355 N.E. 2d 91)

The "Boundary Tree" or "Line Tree"
Once again, the law jumps in–just what is a boundary tree? Many states (California, for one) have a definition within their statutes. If not codified, research of local case law will be required. The prevailing definition is that should the boundary line(s) intersect any portion of the trunk that tree is a "boundary tree" and the first body of law shall apply. Both adjoining land holders own the tree as tenants in common. The tree can be a corner tree with 3 or more shared owners. Each owner has shared responsibility for liability and maintenance. In some jurisdictions, a tree is a boundary tree through actions of the neighbors (and their intent). If the tree is treated as the boundary tree by both parties, it can become a boundary tree, no matter its proximity to the property line.

A boundary tree cannot be removed or substantially altered without the agreement of all the owners (in most situations). In one case, twenty trees were on the line with each owner holding "like" interest in the trees. One fellow cut down 10 or half of the trees for firewood. Needless to say, he had to compensate his neighbor for the damages (Scarborough v. Woodill, 7 Cal. App. 39, 93 P. 383 (1907)). If a line of closely planted boundary trees grow to become a barrier, fence law as opposed to tree law may apply. Should the tree damage or injure an outside party, all owners share equal responsibility. A tree can grow, with its trunk slowly encroaching onto the neighbor, becoming a boundary tree, along with the attached responsibilities or benefits. If one owner decides to build an addition or wishes to enjoy the full extent of his property, many times the other neighbor cannot object. There are exceptions to nearly everything generally stated above. Seek counsel.

The "Borderline Tree" (or sole ownership)
A second and distinct body of law applies should the trunk entirely be on a solitary person’s property. A tree’s branches and roots can be damaged, can do damage, can cause harm or personal injury, obstruct light or a view and/or produce prodigious amounts of fruit or nuts to someone
‘s benefit. Who’s responsible, who benefits, who’s liable and what are some of the ramifications in the borderline tree situation?

Early on, prior to 1836, roots were viewed as sapping the goodness out of the adjoiner’s soil, so the adjoiner had joint responsibility for his neighbor’s tree. Over time, the nourishment test went the by and by. What evolved and had long standing was the "self-help" or "Massachusetts rule". Once again, generally speaking, because trees will do what they will do, the trunk owner has no real control over the actions of a tree. In general, if the roots or branches of the tree damaged or were about to do damage to the adjoining property, the adjoiner could cut or remove roots and branches on his property all the way down below and all the way up above, right to the property line i.e. the self-help rule. Self-help did not allow for trespass onto the tree owner’s property (without permission). Essentially, it was the property owner’s responsibility to protect his domain, or the "law of the jungle" as a number of courts have characterized it. The land owner had no other remedy than what he or she could do for themselves.

The Massachusetts rule (or self-help) is being rethought and is slowly being modified, granting optional remedies to the adjoining owner. Self-help is not being replaced. The adjoiner still retains the right to take the matter into his or her own hands and cut roots and branches. No, the courts are considering other approaches for relief from a negligent neighbor. There’s the "Restatement rule", the "Virginia rule", the "Hawaiian rule", the "California" rule and any number of syntheses of these rules. An excellent summary of these various alternate approaches can be found in a 2002 Tennessee Supreme Court case: Lane v. Curry Sons. (

A note of caution: In exercising self-help one can be held liable for damages done to an offending tree. In a California case, a gentleman cut all the roots down to 3 feet deep, right up to the property line. The neighbor’s tree died. Even though he was technically within his rights, the enthusiastic gentleman lost the case with the court saying "you can prune foliage or cut the roots of a neighbor’s tree if the health and safety of the neighbor’s tree is not compromised". (Booksa v. Patel, 1992; Cal. App. 4th 1786; 30 Cal. Rptr 2d 241)

Bart Crattie is a Land Surveyor, General Civil Mediator (Rule 31) in Tennessee and a Certified Floodplain Manager. He is also on the Board of Directors for the Surveyors Historical Society and in that capacity is a tireless promoter for Surveyor’s Rendezvous 2013. Join us in August in Philadelphia as we set a tombstone on the final resting place of Charles Mason (you know, Mason and Dixon). Check out

A 1.077Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE