I have a client in New Jersey who has a tree growing on his land (not a boundary line tree) and the branches extend over his neighbors yard. The neighbor has hired an arborist to cut the tree to the boundary line. This is a 30 inch diameter tree, positioned within 3 feet of the boundary so if the work is carried out there will be left about one half of the origional tree.

Does anyone have experiance in NJ with how the courts see encroaching trees? Does NJ follow the Massachusetts rule that a property owner can cut the the heights of the sky over the property line or does NJ follow a diffent rule? Any guidance as to where I can get some initial information quickly would be appreciated.

Wayne

Reply to post by Wayne Cahilly, on February 24, 1999 at 07:41:46:

Wayne, I don't have any direct experience in NJ on this. But in thinking about the issue, it seems like it might be likened to water management on a property. You have a right to modify your land to reduce your water problems, but not to the extent that it impacts the next property and creates problems there.

I'll be interested to know how this works out.

Reply to post by Wayne Cahilly, on February 24, 1999 at 07:41:46:

Like russ, I have no specific input on NJ, but take a look at a CA case "Patel." Merrullo did a very limited wrtie up on it in a JofA article titled something like "Common law branches out in new directions."

Reply to post by Scott, on February 24, 1999 at 07:41:46:

The case Scott is referring to is;
Booksa v. Patel (1994) 24 Cal. App. 4th 1786; 30 Cal. Rptr. 2d 241

Very treely,
Lew

Reply to post by Wayne Cahilly, on February 24, 1999 at 07:41:46:

I'll bet the NAA office has some info about this problem, although not necessarily your state. If you are an NAA member, you can just call them in NH.

Reply to post by Russ Carlson, on February 24, 1999 at 07:41:46:

Thanks guys, I think I can make a pretty strong case based on the percentage of canopy removal and the resulting imbalance of the tree presenting an undue threat to the property of the tree owner to discourage the non-custodial homeowner from the "earth to sky" cutting program. It appears that NJ stands on the old common law principal of what is in your space is yours to do with as you wish........ we would still be operating in the 12th century here.

Ill let you know what happens

Regards
Wayne

Reply to post by Wayne Cahilly, on February 25, 1999 at 00:23:39:

>>It appears that NJ stands on the old common law principal of
what is in your space is yours to do with as you wish........ we would still be operating in the 12th century here.

Keep in mind that the courts are obligated to interpret the law of the land- they do not write the law. If the court says the old law reigns, then maybe its time to get to work writing some new laws.

Reply to post by Russ Carlson, on February 27, 1999 at 06:10:00:

I think you may find that the law allows the neighbour to prune off any overhanging barnches or roots without norification to the owner. That is the case in Canada right now. The Patel case is a lower court case in California and may not have precedence eleswhere. We cite many such cases in Arboriculture and the Law in Canada (ISA book).

Julian Dunster

Reply to post by Julian Dunster, on February 27, 1999 at 23:46:59:

I took a look at the Patel case which established the San Francisco rule of reasonableness in this sort of dispute and it would be a right on the money. If this goes that far it would be a good case to cite since there is no undue hardship caused to the non custodial neighbor other then two-million tons of sweet-gum balls.

I conducted a valuation of the tree as well as a condition assessment etc. and I would be surprised if the neighbor doesnt rethink his plan. Bayonne (the location of the tree) is a moderate income community with very little green space and fewer good trees. This tree placed almost anywhere would attract attention, its 39 inches DBH with a 64 X 60 crown spread and no visible mechanical problems.

Thanks for the help and pointing me to the cases.

Wayne

Reply to post by Wayne Cahilly, on February 24, 1999 at 07:41:46:

Results: A valuation of 16,000 and a detailed report on the structural and physiologic condition of the tree lead the neighbor to reconsider, and that one branch near his porch roof is all he really was concerned about...... amazing! However, I think the neighbors will always glare at each other over the fence and past the trunk.

Reply to post by Wayne Cahilly, on February 24, 1999 at 07:41:46:

Thanks for posting a followup, Wayne. Glad to hear that logic and reasonableness can prevail.

Reply to post by Wayne Cahilly, on February 24, 1999 at 07:41:46:

A tree on my property has roots pass the property line. The city wants to build a street to my property line. They want the treet to be removed. They say if they cut the roots to make way for the street, the tree would be unsafe.


What can I do or what are my rights?