On 30 Apr 2006 13:06:21 -0700, "Doug Lassiter"
wrote:

Excuse my posting to this group, but it pertains to trees!

A neighbor tells me that one of my live oaks has dead branches that are
overhanging his property and I need to get them trimmed. Do I
understand properly that this trimming is his responsibilty, and not
mine? With all due respect to him, I have no problems with someone
getting such branches cut off my tree, but I would rather not pay money
to protect his property (a backyard shed). He seems to feel that this
maintenance is definitely up to me. I've always understood the reverse
to be true.

I don't want to turn this into a legal case, and neighborliness is
another matter, but if there is Austin city code that applies, I'd very
much like to be aware of it.

Thanks
This comes right on the heels of a seminar called "Trees, People, and
the Law," put on by the Narional Arbor Day Foundation and held at the
wildflower center last week. It was my second time to attend, and
very little had changed from what I could tell.

With the exception of Austin's protected tree ordinance and
development ordinances, there is nothing in the City code about tree
maintenance. If the tree is larger than 19 inches diameter (measured
4.5 feet above grade), it is protected. Removing it, or damaging it
to the point that it will have to be removed, is illegal unless a
permit is obtained first. The development ordinances apply only to
large commercial developments and new platting.

That leaves the rest of our trees under common law, which dates back
to the Magna Carta. English magistrates determined that I have a
right to cut off branches that extend over my property, even if they
originate from your tree (determined by whose property the trunk
emerges from). Even a few inches of trunk overlapping the property
line make the tree shared by both owners. The branches or fruits that
are on your tree are yours, even if they extend over my line, but you
may not trespass to come get them. You must ask for them within a
reasonable time of their falling on my land. After that, they become
debris and I must remove them. All these fine points would be subject
to interpretation of judge or jury.

That's my long-winded way of saying you don't have to cut the limbs.
In fact, you must receive permission to trespass onto his land if you
choose to cut them. You are trespassing even if you cut them from the
tree (i.e., reaching across the line, even if your feet are on your
side, is still trespass). He may shear your tree off at the property
line (with the caveat regarding protected trees in Austin above) or
just cut out the offending limbs. If you ask for the branches, he
must return them to you, but otherwise they are his responsibility.

If your tree falls and damages his property, you are responsible only
if a reasonable person should have known the tree was hazardous. If
an arborist would have reasonably been expected to make such a
declaration, your responsibility is to know about the flaw and
mitigate it. If an arborist HAS seen the tree and declared it a
hazard, your chance of averting liability goes down drastically. If
the tree fails even though there are no obvious warning signs, it is
not your fault. In this case, it sounds like you may have reason to
believe the dead branches are a risk to his property. If you leave
them, and they damage his shed, you could be held liable.

These are all my opinions extrapolated from a seminar by a lawyer
about tree/law issues. I am not a lawyer and make no claims as to the
validity of these opinions in real-world situations.

My opinion as an arborist and a neighbor is, go ahead and deal with
this. It won't really cost all that much, you will be able to control
the quality of work done to your tree, and you will keep your neighbor
reasonably happy. It will be worth it in the long run.

Good luck.

Keith Babberney
ISA Certified Arborist #TX-0236AT