DAMAGE BY TREE ROOTS.

Colonist, Volume LX, Issue 14891, 14 October 1918, Page 2

DAMAGE BY TREE ROOTS.

AN INTERESTING JUDGMENT.

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Reserved judgment was given in the Magistrate's Court, Christchurch, by Mr S. E. McCarthy, S.M., in v the case in which Henry Laing claimed from the McLean Institute, incorporated, the sum of £22 12s 9d in respect of damage done to his land by encroaching tree roots. In the judgment the magistrate said that the point for decision was novel, and was whether the owner of land on which there were grown trees, the roots of which extend into and injure adjoining lands was under any liability to the owner of such lands. The facts were that the plaintiff was the owner of land adjoining that of the defendant corporation. Tliere were on tho land four large trees at least sixty years old. The trees were quite close to the common boundary, and their roots extended a. distance of GO feet into plaintiff's property, thereby preventing plant growth and endangering the house foundations and drains. The plaintiff had notified the defendant corporation, and requested it to abate the nuisance, but the request was declined. The Institute, however, offered £3 compensation without prejudice. Tlie magistrate said tTiat the law had been laid down, as to the liability of ;i landowner in respect of branches from growing trees overhanging adjoining lands, and in such a case no action for damages would-lie unless there had been actual or sensible damages. The projection-of the branches over the adjoining lands so far constituted a nuisance as to justify thd owner of these lands in cutting back the offending branches without notice to the owner of the trees. In a previous claim for root damages, the judge had pointed out that there was no precedent for holding that an action would lie for such damage. It had to bfc remembered that case law was only authority for points actually decided, and not for those which might be inferentially drawn therefrom, "in the case referred to counsel for plaintiff had contended that root damage was within the principle of overhanging branches. -,

In the present in his Worship's opinion, judgment would have to be for the defendant corporation on two grounds: (1) That there was no action for damage in respect of injury caused by roots extending from growing trees into adjoining lands, and (2) that assuming such'an action di 3 lie, it .did not lie in respect of damage the major part of which, had accrued before the owner of the frees had acquired possession oi; his land, or had received notice of or acquired knowledge of the .injury. The owner of the land, how- *] over, was not without remedy, as, he • i could always cut off the roots immedi'lately they invaded his land. The fact ■';must not be overlooked that while the l; injury from overhanging trees was J patent, that from encroaching roots 3 was hidden. It had also'been-shown };tha.t plaintiff was claiming to recover jj damages caused by trees, of which im- ' i mediately before he was the owner J |. Judgment would be "for the defendant i'~j corporation with costs.