John Roska: Neighbors can eliminate tree encroachment within limits

John Roska: Neighbors can eliminate tree encroachment within limits

Q: I have a neighbor who planted a tree 10 feet from my property line. When the tree gets bigger, can I trim the limbs over my property line? Or will I get in trouble?

A: Your concerns may be premature, but if the sapling becomes a tree, and if its branches extend over your property line, you can trim them. But only up to your property line.

For starters, we're only talking about trees whose trunks are completely on your neighbor's property. That makes it clear you don't own the tree, since tree ownership is determined by where the trunk exits the ground.

Trees with trunks straddling property lines are jointly owned, and create their own problems of joint ownership. Then, decisions about the tree have to be made jointly.

Under traditional common-law rules, a property owner's rights extend "ad coelum et ad inferos" — to heaven and to hell. Federal aviation law now limits air rights up to 500 feet, where "navigable airspace" begins.

Generally speaking, a property owner can eliminate "encroachments" into their airspace, or onto their property. That's simply exercising dominion over what you own. So, within limits, a property owner can eliminate an encroachment of overhanging branches.

Those limits are: You can only eliminate the encroachment up to your property line; you can only do it at your own expense; and you can't kill or seriously damage the tree.

Your property rights end at the property line, so trimming beyond that line would be encroaching on your neighbor's property.

If you needed to go onto your neighbor's property to trim the overhang onto your property, one case says you can. According to that case, you're "privileged to enter upon a neighbor's land to abate a condition thereon which constitutes a private nuisance."

That can open a can of worms, though, so be careful. Defying a neighbor who refuses permission to come onto their land probably won't end well.

Trimming must be at your expense. While there might be arguments why the neighbor should pay, as above, suing if they refuse probably won't make things better.

And you can't kill the tree when you trim it. That might subject you to liability under the Wrongful Tree Cutting Act. That law traces back to early settler days, and imposes triple damages upon anyone who "intentionally cut or knowingly caused to be cut any timber or tree which he did not have the full legal right to cut."

So, trimming just an overhang, up to your property line, without entering your neighbor's property to do the trimming, is OK — if you don't kill the tree. Beyond that, things get less clear.

What if a neighbor's tree creates a hazard, without any overhang? The tree owner would probably be liable if it actually caused damages. But that doesn't necessarily give you the right to "self-help" to prevent damages from occurring. An injunction to make the neighbor do something is a cautious possibility, as impractical as that may be.

John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. Send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.

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