OVERHANGING BOUGHS.

Daily Telegraph (Napier), Issue 9821, 21 July 1900, Page 5

OVERHANGING BOUGHS.

Interesting Legal Qnestion.

Fitzgerald v. Simpson.

Decision of the Chief Justice.

This morning the Registrar of the Supreme Court, Ivlr A. Tnrnbull, read the judgment of his Honor the Chief Justice in the case Garrett Fitzgerald v. William Simpson, heard at the last sittings of the Court at Napier. Mr Cresswed for plaintiff and Mr Lusk for defendant. His Honor's judgment was as follows : "This case raises an interesting'and novel legal question. The facts are'not in dispute. Plaintiff and defendant are neighbors owning adjoining sections of land in Napier. The defendant plauted a tree near the boundary of his land, and some years afterwards the plaintiff erected his house near the boundary where the tree was growing. Some boughs of the tree have grown across the boundary line and overhang the plaintiff's land. The plaintiff began an action iv the Magistrate's Court lor damages against the defendant, but he was nonsuited by the Magistrate as he fai'ed to prove that he had suffered any damage from the overhanging boughs. The defendant aftc-.r the nonsuit told the p'aintiff to clip or cut the boughs that overhung his land, but the plaintiff instead of doing that commenced next day this action in this Courr, claiming (l)a mandamus ordering the defendant to remove the said nuisance, (2) an injunction restraining the defendant from renewing or perpetuating the same, (3) the sum of £50 damages, and (4) other relief.

" It was admitted that from the boughs overhanging no damage has been sustained by the plaintiff. The tree by excluding light and sun may be said to cause damage, but not so much as if a wall or house had been erected where the tree stands. The question therefore is : Does an action lie by an owner of land against an adjoining owner if some boughs of his tree overshadow the former's land ?

" There is no English decision to that effect. In Crowhurst v. Amersham Burial Board (L.R. 4, Ex. Div. 5, pp. 9 and 10), the Court, consisting of Chief Baron Kelly and Baron Pollock, sikl: ' Was the act of the defendants in originally planting the tree, or the omission to keep it within their own boundary a legal wrong against the occupier of the adjoining field, which, when dim age arose from it, would give the latter a cause of action?' And the Court answered this question by stating what both parties miirht contend and then continued: 'It miy also be said that if the trees were innocuous it might wed be held, from grounds of general convenience, that the occupier of the land projected over would have no right of action, but should be left to protect himself by clipping. Such projections are innumerable throughout the country, and no such action has ever besn maintained.' In that case the tree was a yew tree and poisoned a horse. It is clear, however, that if the tree had not been poisonous the Court of Exchequer would have held that no acton lay.

" There are, however, scattered through various text books, statements that such an action would lie. For instance in Stephens's Commentaries (Vol. 111, 3rd cd., pp. 526 and 527) it is said : ' If a man builds a bouse so close to mine that his roof overhangs my roof, and the water flows off his roof upon mine, this is a nuisance, for which an action will lie, and the case is the same if the boughs of his tree are alio wed to grow so as to overhang my land, which they had been accustomed to do." For ihis statement of the law Norris v. Baker (I. Roll, Rep. 393) and Lodie v. Arnold (2 Balk. 458) are cited but neither of these cases decide that such an action will lie. In Pollock on Torts (444, 4th cd.) it is said that ' having a tree, noxious or not, prominently projecting over a neighbor's land is of itself a nuisance,' but it is not said an action will lie. The right to abate such a nuisance is undoubted, see Norris v. Baker (I. Roll, Rep. 394) Lansdale v. Nelson, (2 B. and C. 311, per Bes*-, J.) Gale ou Easements 555, 6th cd., Lemmen v. Webb (L. R., 1894, 3, eh. I), and 10 S.L.R. 417 (1895). It was said in Wintrnp v. Mitchell (15 N.Z. L.R., 232) that trees overhanging a highway did not necessarily constitute a nuisance. There must be some interruption to the user of the highway. <! In America the point has been actually s+ttled, and it has been decided that an adjoining owner before he can sue for damages must, if the tree is innocuous, prove some real sensible damage. See Countryman v. Lighthiil (24 Hun. N.Y., 405). In that case it was said : 'It would be intolerable to give an action in the case of an innocuous tree *whenever its growing brandies extend so far as to pass the boundary line and overhang a neighbor's soil. The neighbor has a remedy in such a case by clipping the overhanging brauches, especially if the owner of the tree refuses to do it on beirg requested.' And the American Court cites the dictum by the Exchequer Division in Crowhurst v. Amersham Burial Board as law. Other American Court 3 have decided in a similar way. See Grandona v. Lovdal (78 Cal. 611, 12 Am. Stat. Rep. 121) though in this case the definition of a nuisance iv the Californian Code may have influenced the decision.

" The reason for such a rule is, I think, obvious. The person in whose ground the trunk of the tree grows is its owner and if the branches spread on to his neighbor's land he is not interfering with the legal right of possession of his neighbor's land, and no prescription would entitle him to claim an easement over his neighbor's land, as the tree is a growing thing. See Lemmon v. Webb (1895 A.C., 1.). If his right to possession of his land cannot be infringed, and as he may cut the branches, he cannot come into Court unless he can show some actual or sensible damage. If the tree is poisonous he may sue, otherwise he must prove sensible damage. Were Ito hold that the plaintiff could recover in this cane, I would be setting aside the dictum of the Exchequer Division, and establishing anew precedent not known to the English law. There have been in England thousands of instances where a neighbor's trees have sent boughs across another's land, and no action has ever been heard of for such intrusion. As I have pointed out, there are in America express decisions that such an action does not lie, and these decisions are quoted in American text books as law (see American and English Enc. of Law, vol. 26, p. 560,1.). " I must give judgment for defendant with costs according to scale, that is on the lowest scale, with witnesses' expenses and disbursements. Judgment accordingly."