6. What about a border tree planted near a property line that grew so its trunk crossed the line? Who owns it?

Imagine a tree that was planted close to the property line but entirely on one neighbor’s property.  As time passes, the trunk is going to become bigger. Eventually the trunk may grow so large that it extends partway over the property line. Now who owns it?

This question is a simple one, but it has caused the legal system some headaches. On the one hand, it seems as if the original owner would still own all of the tree. He didn’t choose to give the tree to his neighbor, after all. He always intended it to be his, and it was unquestionably his – until it grew just a little too big. Can he lose ownership of a tree just because it grew? That seems strange. But on the other hand, the tree trunk is now partly on the neighbor’s land. How can she not own the part of the tree that is on her own land, even if the original owner thinks the tree is completely his?

So the law has struggled with this situation, and different courts have reached different answers. Some courts have felt that any tree that crosses a boundary line is owned by both landowners, regardless of where it was originally planted or what the parties intended. Other courts have preferred to consider the two neighbors’ understanding regarding the tree and how they have dealt with any past issues regarding its maintenance. This is a legal question where different jurisdictions have created different rules for themselves.

Example: Let’s imagine two lots next to one another.  One lot belongs to Cathy, and one lot belongs to Daniel. When Cathy bought her lot thirty years ago, she planted a small tree near the boundary line separating her lot from Daniel’s lot.  At that time, the tree trunk was entirely on Cathy’s lot and so Cathy completely owned the tree.

But thirty years have passed and the tree has grown quite a bit.  Now the tree trunk is partly on Daniel’s property.  Let’s imagine that Cathy and Daniel go out and measure the trunk and do some math, and in the end they decide that 5% of the tree trunk is on Daniel’s property and 95% is still on Cathy’s property.  So now who owns the tree?

(By the way, since this is a fictional example, it’s easy to say that 5% of the trunk is on Daniel’s lot and 95% is on Cathy’s lot, and both Cathy and Daniel agree on this. In real life, it might be a lot harder to figure out exactly how much of the tree trunk is on each person’s lot.)

On the one hand, you could say that Cathy is unjustly forcing Daniel to use some of his land for the benefit of her tree.  On the other hand, you could say that they both own the tree, and treat the situation just as when a tree is deliberately planted on a boundary line to mark where it is. In that case, Cathy isn’t unjustly forcing Daniel to give up some of his land for her tree – Daniel now owns the part of the tree that’s on his land.

QUIZ

1. A tree is 100 years old and was originally planted on Fred’s land, but the trunk has grown so that 10% of the trunk is now on Gayle’s land and 90% on Fred’s land. Who owns the tree?

Fred or Gayle, and why?

Courts have treated this situation differently in different jurisdictions. In some jurisdictions, the court would probably decide that Fred owns all the tree because the trunk is mostly on his land and the tree was originally planted on his land. In other jurisdictions, the court might decide that Fred owns 10% of the tree and Gayle owns 90% of the tree.

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2. This tree is 60 years old and was originally planted like this:

small tree

Now it looks like this:

small tree that grew

Who owns the tree?

Paula or Quentin, and why?

Courts have treated this situation differently in different jurisdictions. In some jurisdictions, the court would probably decide that Paula owns all the tree because the trunk is mostly on her land and the tree was originally planted on her land. However, in other jurisdictions, the court might decide that Quentin owns 10% of the tree and Paula owns 90% of the tree.

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