Does anyone know of any actual court cases involving construction damage to tree roots and subsequent harm to the tree(s)?

Here's a summary of the problem:Involved are 2 150 year old English elms (28" and 30" DBH). A 3 foot deep trench is planned for a retaining wall 15 feet from these trees. I estimate over 60% of the roots will be severed and the tree's health and stuctural integrity will be compromised(a parking lot is on the opposite side of the trees). A detailed report was submitted on the possible harm this trench may do to the trees supported by current research on construction damage and roots.
We would like to submit an actual case where severing tree roots was proven to be the causal factor in the trees' demise.

Thanks

Dave H.

Reply to post by David Hawkins, on June 14, 1999 at 08:13:30:

Dave,

In 1993(I think) in San Fransico there was a case one of the parties name was Petel which involved cutting or roots along a boundrary line resulting in the destabalization of the neighbors tree. It was done with some malace from what I can tell and the courts found in favor of the tree owner in the case, not the man who cut the roots. Would be worth taking a look at.

Wayne

Reply to post by Wayne Cahilly, on June 14, 1999 at 08:13:30:

There are quite a few root cases, which will be in my new book. the one Wayne is referring to, which is a real good one is; booksa v Patel (1992) citation #24 Cal. App. 4th 1786; 30 Cal. Rptr 2d 241.
Very treely,
Lew

Reply to post by lewbloch, on June 14, 1999 at 12:12:05:

Wayne and Lou,

Thanks for the reply. I figured there had to be some cases involving root damage and tree failure. The case you provided will be very useful in helping to save the two trees I mentioned.

Lou, does your book contain any cases in the eastern US, or could you direct me to a source where I could look up similar cases with a summary of each - perhaps something on the web? I also have access to the University of Mass.library system if that would help.

Thanks again for the info. Looking forward to reading your book Lou (when will it be out?).

Dave H.

Reply to post by Dave Hawkins, on June 14, 1999 at 18:06:52:

The significance of the California case is great. It is a first step towards redefining the common law right to prune roots or branches up to the property line without notifying the owner of the tree. It will be a fascinating area of law to watch as more try to ensure that the common law rights do not damage of destabilise their trees which is a very common occurrance in Canada and the US

Julian

Reply to post by Dave Hawkins, on June 14, 1999 at 18:06:52:

Dave,
Thanks for asking, my book should be finished this Fall. I don't know how long ISA will take for editing and reviewing after that.As to finding cases, all lawyers have access to Lexus and can search cases easily.
Anyone out there with cases for my book, please contact me very soon as it is getting close to being finalized. Remember, you will get a by-line in the book.
Very treely,
Lew

Reply to post by Julian Dunster, on June 16, 1999 at 21:58:12:

Lou and Julian,

Thanks for the reply. I'm glad to here the legalities may be changing when it comes to tree roots and construction damage. I'll keep you posted of the results of the case I'm involved with. Unfortunately, the damage may be done and the repercussions won't be seen for a few years. Maybe our case will be in you 2nd edition.

Dave H.

Reply to post by Julian Dunster, on June 16, 1999 at 21:58:12:


Jullian, statutes always overide common law. To this extent
in Australia, damaging a tree with "wreckless indiference" is
liable to criminal prosecution (including penal servitude).

The wright to protect your property is also a common law right.
It just goes to show that the law is an ass.

Reply to post by David Hawkins, on June 14, 1999 at 08:13:30:

The Patel case was written up in the Journal of Arboriculture by Victor Merullo. he title was something like "Common Law Branches Out in New Directions." I believe the principal significance of Patel is for relative rights of owners of boundary or near boundary-ine trees.

I get the sense that the key issue in the case you describe is to support the fact that such significant root damage does impact tree health and structural stability and that causing such loss of stability can result in liability. IF your case concerns a boundary tree such documentation might have helped persuade the 'root owner' to be concerned about the 'trunk owner's' tree, but also applies to non-boundary trees and especially to public trees.

I would think case law presents many more cases involving liability for tree failure after root damage than the sub-set of cases involving boundary trees. (As Julian points out, common law has previously favored the rights of the fee owner -- "I can do anything I want with the roots in my dirt, their not your's once they cross my boundary line." There may not be much to find yet that follows Patel.)

Get to a law library in your state (or do a computer search if you have access to Lexus/Nexus) and search cases on "tree damage" or "tree liability" or "tree roots." Explain your problem to the law librarians, they'll help you define search criteria.

Reply to post by Scott Cullen, on June 14, 1999 at 08:13:30:

Scott, thanks for the advice. Unfortunately I don't have access to Lexus/Nexus but will utilize the local law library if needed. Ironically, my client was informed by his client(the owner of the trees) that, upon contacting Mr. Merullo, he could not recall of any court cases where someone was held liable for root damage and subsequent demise of trees. I'm not sure what transpired in thier converstion, but I will search the Journal of Arboriculture index for his article. Any idea as to the approximate date of the publication?

Thanks
Dave H.

Reply to post by Dave Hawkins, on June 18, 1999 at 06:09:03:

Dave,
The Merullo article appeared in the journal of Arboriculture in nov. 1994
very treely,
Lew

Reply to post by lewbloch, on June 18, 1999 at 23:49:45:

Thanks Lou, I just finished reading it. You saved me a trip to law library.

Dave H.

Reply to post by lewbloch, on June 18, 1999 at 23:49:45:

Does anyone know of courtcases where owners have been asked to cut up to 60 mature trees by loss adjusters to avoid underpinning of a low rise building situated on VERY high plasticity clay at one end (1) of the building and high plasticity of clay at the other end (2) (approximately 20 metres distance from end (1)?

Is such wholesale destruction of trees justifiable when two trial pits brought up only two CONCLUSIVELY identified roots out of 11 roots, and also roots of VEGETATION WHICH COULD NOT BE IDENTIFIED?

Does anyone has views on this?

Reply to post by Dave Hawkins, on June 17, 1999 at 10:44:25:

A developer is putting 11 houses on the lot adjacent my property here in Fremont, California. The workmen dug and placed a drainage pipe about 3 feet in diameter, laid about five feet deep and in a trench about 4 feet wide along the length of our common border and in the process cut the roots of a very large tree that is about a foot inside my property line. That was in August 2002. This week it is evident that the tree is dying or already dead. I have photos before and after. Do I have any rights in the matter?