Dendrology Discord - Neighbors, Trees, and Neighbors' Trees

With Spring finally within reach, many of us have been daydreaming about the multitude of warm-weather activities that will soon be possible. Going for long walks, taking the kids to the park, sitting outside with a relaxing book--the list is endless. And at the top of that list? Undoubtedly spring's most notable attribute: the yearly bloom of trees and flowers.

But at the same time the leaves on the trees signal the approach of a more pleasant climate, they also signal the arrival of a less anxiously-awaited task--tree trimming and maintenance. And while, to some, this is just an arduous arboreal undertaking, many of us share or have a tree very close to their neighbor's property. And then, of course, a number of questions can arise. Who has the responsibility of trimming? How much can they trim? Can they cut the tree down? What if they do?

In other words, it's high time we tackled some tree law. Below you'll find a list of common questions, as well as their answers, most of which are found in common law (judge-made law) rather than codified in Wisconsin Statutes (though some of these laws are codified in Wis. Stat. § 26).

Who owns a tree?

The owner of the tree is whoever owns the land on which the tree trunk is located. If a trunk straddles a property line, then both owners share an ownership interest in the tree. That means both owners are responsible for the tree's maintenance, and the consent of all owners is needed to remove the tree.

I own the tree, but some of the branches hang over my neighbor's yard. Can my neighbor cut them?

Your neighbor has the right to trim any limbs or branches that extend past the property line, but only up to the property line. Beyond that, any cutting is illegal. Furthermore, if your neighbor trims enough to seriously injure or kill the tree--even if the cutting is done on their property--your neighbor is liable to you for damages.

Additionally, you are not responsible for all foliage that hangs over the property line. So while your neighbor can cut those branches, they cannot force you to do so.

If my neighbor does kill my tree, can I sue them?

Yes. In order to do so, you must prove three things: 1. The tree was yours, i.e., the tree stump was located on your property (or you and your neighbor had a shared interest in the tree).

2. Your neighbor killed or seriously injured the tree. This can be accomplished by cutting too much of the tree, but it can also be done if the neighbor, for example, digs up a certain part of their yard and damages the tree's root system, or uses chemicals on their lawn that damage your tree.

3. The tree was not an imminent danger to others. Unsound trees, especially those that are dead or appear as if they will soon fall onto someone's property, are not entitled to the same protections as healthy trees.

In terms of recovery, Wisconsin law allows the owner of the tree to recover:

- DOUBLE the value of the tree, or the diminished value if the tree cannot be replaced;

- Costs related to tree removal, replacement, or land cleanup;

- Costs related to replanting

- All legal costs and fees required to bring forth a claim

So, how much is the value of my tree?

Most trees have a value or replacement value between $500 and $2,500. However, this number can rise rapidly if the tree had sentimental, historic, or landmark value, and some trees in past have been given values of over $20,000. Granted, this isn't common, but it's still best to use extreme caution when performing tree maintenance.

My neighbor owns the tree, but the leaves are getting all over my yard. Can I do anything about it?

Unfortunately, not much. Leaves are considered a natural product, so you're responsible for any and all leaves that may blow into your yard. Furthermore, you can't bring any sort of nuisance or other claim against your neighbor, even if the leaves jam gutters or pipes. If the leaves are coming from branches that hang on your side of the property line, you are entitled to cut those branches, though, as mentioned, be careful.

One option to consider would be building a fence, provided that it stays on your side of the property line. This could prevent the leaves from blowing into the yard.

My neighbor owns a fruit tree. Can I pick the fruit?

If your neighbor owns the tree, you cannot pick the fruit, even if the fruit is on branches that are on your side of the property line, as Wisconsin law dictates that all fruit borne by the tree is the property of the tree's owner.

That said, there's not much law on the books regarding who owns the fruit after if falls from the tree, so check your local ordinances, or give us a call, to see if you can collect that fruit.

Of course, if your relationship with your neighbor is good, it may be simplest to just ask if they can share some of their fruit. After all, tree law--like much of Spring--is best navigated in the company of others.

Danny Garcia is an Associate at Parks Law Offices, LLC. His practice emphasizes Criminal, Landlord/Tenant, Employment, and Litigation, and Danny also speaks Spanish. Some of his favorite trees include Wisterias and Japanese Maples.

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