CHAPTER 6 Boundary Trees
Ownership
The Basic Rule: Location of the Trunk
Exception to the Rule: Conduct of the Neighbors
When the Trunk Grows Into the Boundary
Co-Owners' Responsibilities
Maintenance and Care
Getting a Co-Owner to Cooperate
Damage to or Removal of a Boundary Tree
Co-Owners' Rights
You Want to Remove a Boundary Tree
Preventing a Co-Owner From Removing a Boundary Tree
When a Co-Owner Damages or Removes a Boundary Tree
A tree may grow a thousand feet tall, but its leaves will return to its roots.
—Proverb
When a tree stands on or near a boundary line, sometimes we are not really sure who is supposed to take care of it or who owns it. When the tree is a bother, we want it to be our neighbor's; if it is loaded with fruit, we would just as well it belong to us.
The laws concerning boundary trees are not the same as the general laws on trees because they are based on co-ownership. Co-owners have different legal responsibilities and different legal remedies if a tree is damaged.
Rows of boundary trees that have grown close together and spread to form a barrier can be considered fences. When they are, they are subject to state and local fence regulations. (See Chapter 11.)
Ownership
The Basic Rule: Location of the Trunk
The location of a tree's trunk usually determines who owns the tree. If a tree's trunk is entirely on one person's property, that person owns the tree, even if the roots spread under a neighbor's land or the branches hang over it. When a tree trunk straddles a boundary line, the common rule is that it belongs to all the owners of the properties.
A few states have written this definition of ownership into their state statutes. In California, trees whose trunks are partly on the land of two or more persons are called "line trees"1 and are commonly owned by all such neighbors. Other states have no statutes, but the common law—rules of law developed by the courts—usually says that a tree whose trunk straddles a boundary belongs to both property owners.2
Sometimes, however, neighbors don't know exactly where the boundary between their properties is, so they don't know whether a tree truly sits on the line. When the boundary line can't be found from deed descriptions or property records, neighbors may agree on where they believe the boundary is. Any tree whose trunk straddles that agreed-upon line is a boundary tree, co-owned by both neighbors. In fact, in this situation, neighbors often choose a tree or another landmark to mark the boundary line.
This agreement doesn't have to be explicit between the neighbors; it can be implied when both neighbors act as if the tree marks the boundary between their properties. Even mowing the grass on each side up to the tree can reflect a neighbor agreement about the location of the boundary line. Such agreements can sometimes create uncertainty. If you're concerned about a tree that may sit on an agreed boundary line, see Chapter 9.
In states without statutes, to determine the exact law on boundary tree ownership, you will have to do a little research on court decisions in your state. Chapter 18 will show you how to get started.
Exception to the Rule: Conduct of the Neighbors
If a tree trunk is located on two properties, there is a strong legal presumption of joint ownership. But if the boundary line is in dispute at all, a court presented with the question of who owns a tree might look at the conduct of the property owners. In two court decisions, one from Nebraska3 and the other from Colorado,4 the judges suggested that for any tree to be a boundary tree, the neighbors must either jointly plant it, jointly tend it, or treat it as the boundary between their properties.
EXAMPLE: In the Nebraska case, a man sued for an order to prevent his neighbor from cutting a large cottonwood. The neighbor who wanted to remove the tree claimed it was all his; the other argued that it was a boundary tree. The boundary line was unclear. These neighbors had jointly tended the cottonwood for years. It had become diseased and together they had treated it, cabled it, even strengthened it with concrete. The court declared that because the boundary was unclear, their conduct indicated that they both owned the tree. The judge ordered the ax-happy neighbor not to harm it.
Because there is so little written law on this subject, it's difficult to predict what another court might do in a similar situation. It is doubtful that a judge would allow the presumption of common ownership to be overcome unless there were other circumstances present—for example, when the boundary line has been in dispute, or when the trunk has grown into the boundary line (see below).
When the Trunk Grows Into the Boundary
A tree that starts life wholly on one person's property may, as the trunk grows, spread into the adjoining yard. Does the neighbor become a co-owner? It depends on what state you're in and how the neighbors treat the tree.
In all states, when the trunk grows into the boundary and both neighbors treat the tree as a boundary tree, it is one. In some states (for example, California, Louisiana, North Dakota, and Oklahoma), trees growing into the line become common property no matter how the property owners act. Once the trunk starts to straddle the line, the originally treeless neighbor automatically becomes an owner. Courts in some other states, however, including Colorado and New Mexico, require the neighbors to agree that a tree that has grown into a boundary line is a boundary tree, or to act as if it were—for example, sharing the cost of maintenance. Otherwise, if the original owner remains in total charge, the tree still belongs to that owner.5
Let's look at two examples with opposite results.
EXAMPLE 1: Fred plants a small eucalyptus tree on his property near the boundary line. His next-door neighbor Henry thinks Fred is making a big mistake and refers to the tree as Fred's Folly. During the next 15 years, Henry ignores the tree except for periodic complaints about how dirty and ugly it is. Finally, the roots begin to buckle any concrete within their reach, including Henry's patio and Fred's driveway, and the tree becomes a real nightmare to both of them. By now the trunk is huge and firmly straddles the line. They live in California, where the location of the trunk determines the ownership. When they decide to have it removed, who is legally responsible for paying for it? Both of them, half and half. Fred's Folly has become the Co-Owners' Common Concern.
EXAMPLE 2: Ken has an oak tree whose trunk has slowly grown into the property of his neighbor, Suzy. Suzy enjoys the tree but has never acted as an owner—she's never paid for a trimming, for example. One day Ken gets very tired of the leaves and debris and chops the tree down. They live in Colorado, where a tree growing into the boundary line must be affirmatively treated as a boundary tree for both neighbors to become owners. Suzy sues Ken for cutting down a tree that also belonged to her, and she loses. The tree was never treated as a boundary tree, and it still belonged to Ken.6
Usually, ownership of a tree on a boundary line is shared equally by each co-owner. But how about arguing that if the trunk is mostly on one property, that neighbor owns a proportionately larger share? You could, although the only law supporting that theory is a suggestion to that effect in a court...
