Duhaime's Law Dictionary

Boundary Tree Definition:

A tree whose trunk, roots or branches encroach on the property or air space of an adjoining owner.

Also known as a border tree.

In Halsbury's Laws of England, 4th Edition (2002), the authors note:

"The ownership of a tree on a boundary is a question of fact in each case but such a tree will prima facie belong to the owner of the land on which it was planted. Where ownership is disputed, the topping and lopping of a tree is evidence of acts of ownership."

The issue of ownership of, and liability for boundary trees can be determined by statute, such as §833 and §834 of the 2009 California Civil Code:

"Trees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another. Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common."

In Koenig, Justice Klebuc of the Saskatchewan Court of Queen's Bench noted that no statute was of assistance, and it then attempted a summary of the common law of the law of boundary trees:

"I have grouped boundary trees into three main categories solely on the criteria of location. The Border Tree category encompasses trees whose trunks are solely on one property at ground level, but whose roots encroach into an adjoining property, or whose canopy of branches invades the air space above an adjoining property. The Straddle Tree category includes trees whose trunks straddle the common boundary between adjoining properties at ground level. Included therein are three sub-categories: the first includes only those trees planted along a common boundary with the consent of the adjoining owners, or their predecessors in title (Consensual Trees). The second encompasses those trees planted on one property but whose trunks have expanded over a common boundary onto the adjoining property (Straying Trees). The third includes trees whose origins are unknown (Voluntary Trees).

"There is clear authority for the proposition that a property owner is legally entitled without notice to cut those branches and roots of a neighbour's Border Tree which extend onto his property or air space although such action may kill the tree."

In Davey, Justice Goddard wrote:

"The nuisance consists in allowing the trees to encroach from the land of their owner into that of his neighbour. The owner must keep his trees in, just as he must not allow filth to escape from his premises onto that of his neighbour."

In Anderson, the British Columbia Court of Appeal wrote:

"...border trees ... do not trespass. It is those who cut them who may in so doing trespass on the land, or air space, of their neighbours. Insofar as branches ... extend across the boundary line into a neighbour’s property, that neighbour may ... have a remedy in nuisance, and this may …include a right to self-help, but it will not generally include a right to enter the other’s property nor to cut any part of the tree which is on the other’s side of the property line."


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