A neighbour could lop boughs overhanging his property without notice to the owner of the tree, provided that he could do so without entering the owner’s land. A similar right of abatement by cutting applied to encroaching roots.
Lindley LJ said: ‘But to plant a tree on one’s own land infringes no rights, and, if the tree grows over the soil of another, I cannot discover that any action lies for the encroachment unless damage can be proved. I can find no authority for the proposition that an action of trespass would lie in such a case.’
Kay LJ said: ‘The encroachment of the boughs and roots over and within the land of the adjoining owner is not a trespass or occupation of that land which by lapse of time could become a right. It is a nuisance. For any damage occasioned by this an action on the case would lie. Also, the person whose land is so affected may abate the nuisance if the owner of the tree after notice neglects to do so.’
Judges:
Lindley, Lopes and Kay LJJ
Citations:
[1894] 3 Ch 1
Jurisdiction:
England and Wales
Cited by:
Appeal from – Lemmon v Webb HL 27-Nov-1894
A land-owner was free to lop off boughs from his neighbours trees to the extent that they reached over his land, and he could lop them without going on to the neighbour’s land. He was not required to give notice of his intention to do so. . .
Lists of cited by and citing cases may be incomplete.
Land, Torts – Other
Updated: 16 May 2022; Ref: scu.219081