I live in Brooklyn, NY and in the backyard is a 30-yr old maple tree that my
parents planted before I was even born. The tree was planted about 2 feet
away from the fence and now, 30 yrs later, is a bit of a monster--part of
the trunk is on my neighbors side. They are currently putting up a big fence
and have already managed to convince my parents to let them cut a chunk away
from the very bottom of the trunk (my parents consulted a tree surgeon first
of course, and he said it was ok)--now the neighbors are saying that they
need to cut what appears to be a major root (almost looks like part of the
trunk itself)--the tree surgeon is coming over again tomorrow, but I'm
fairly certain that this is a vital component to the survival of the tree.
My grandfather was a real estate attorney and some years before he died
looked up some law regarding trees and discovered something called "air
rights" or something like that, which basically provided that the branches
of a tree, as long as it doesn't physically touch a neighbors property may
not be cut by that neighbor even if it is "over" their property. I was
wondering if there are any comparable laws regarding the tree trunk itself
and its major roots, which obviously run well under my neighbors property?
Help would be greatly appreciated -- thanks.

Keith
kegepet
at
nyc dot
rr dot
com

On Tue, 17 Jun 2003 19:18:14 -0400, "TheKeith" wrote:

I live in Brooklyn, NY and in the backyard is a 30-yr old maple tree that my
parents planted before I was even born. The tree was planted about 2 feet
away from the fence and now, 30 yrs later, is a bit of a monster--part of
the trunk is on my neighbors side. They are currently putting up a big fence
and have already managed to convince my parents to let them cut a chunk away
from the very bottom of the trunk (my parents consulted a tree surgeon first
of course, and he said it was ok)--now the neighbors are saying that they
need to cut what appears to be a major root (almost looks like part of the
trunk itself)--the tree surgeon is coming over again tomorrow, but I'm
fairly certain that this is a vital component to the survival of the tree.
My grandfather was a real estate attorney and some years before he died
looked up some law regarding trees and discovered something called "air
rights" or something like that, which basically provided that the branches
of a tree, as long as it doesn't physically touch a neighbors property may
not be cut by that neighbor even if it is "over" their property. I was
wondering if there are any comparable laws regarding the tree trunk itself
and its major roots, which obviously run well under my neighbors property?
Help would be greatly appreciated -- thanks.

Keith
kegepet
at
nyc dot
rr dot
com

TheKeith wrote:

I live in Brooklyn, NY and in the backyard is a 30-yr old maple tree that my
parents planted before I was even born. The tree was planted about 2 feet
away from the fence and now, 30 yrs later, is a bit of a monster--part of
the trunk is on my neighbors side. They are currently putting up a big fence
and have already managed to convince my parents to let them cut a chunk away
from the very bottom of the trunk (my parents consulted a tree surgeon first
of course, and he said it was ok)--now the neighbors are saying that they
need to cut what appears to be a major root (almost looks like part of the
trunk itself)--the tree surgeon is coming over again tomorrow, but I'm
fairly certain that this is a vital component to the survival of the tree.
My grandfather was a real estate attorney and some years before he died
looked up some law regarding trees and discovered something called "air
rights" or something like that, which basically provided that the branches
of a tree, as long as it doesn't physically touch a neighbors property may
not be cut by that neighbor even if it is "over" their property. I was
wondering if there are any comparable laws regarding the tree trunk itself
and its major roots, which obviously run well under my neighbors property?
Help would be greatly appreciated -- thanks.

Explain the possible long-term consequences of cutting the roots vs. letting
them be. If the tree is located south to west of their house, it's very
possibly saving them hundreds of dollars in air conditioning costs. Loss
of the tree from an excessively hard root pruning could be counterproductive.

Even more so if the tree loses anchorage from a weakened root system...

I think you better recheck the law on air rights because I doubt it's
in your favor. Every state I've heard of gives owners the right to
cut branchs which overhang into the air space above their property.
That's the law here in NJ and I'd be willing to bet it's the same in
NY.

If it's only a few inchs of tree trunk thats in the way, the
reasonable solution is for them to just put the fence a few inchs away
from the property line. If it's more than that, I don't see how
you're going to save the tree.

It would also be a good idea to check local ordinances on fence size,
location, any necessary permits, etc.





"TheKeith" wrote in message ...
I live in Brooklyn, NY and in the backyard is a 30-yr old maple tree that my
parents planted before I was even born. The tree was planted about 2 feet
away from the fence and now, 30 yrs later, is a bit of a monster--part of
the trunk is on my neighbors side. They are currently putting up a big fence
and have already managed to convince my parents to let them cut a chunk away
from the very bottom of the trunk (my parents consulted a tree surgeon first
of course, and he said it was ok)--now the neighbors are saying that they
need to cut what appears to be a major root (almost looks like part of the
trunk itself)--the tree surgeon is coming over again tomorrow, but I'm
fairly certain that this is a vital component to the survival of the tree.
My grandfather was a real estate attorney and some years before he died
looked up some law regarding trees and discovered something called "air
rights" or something like that, which basically provided that the branches
of a tree, as long as it doesn't physically touch a neighbors property may
not be cut by that neighbor even if it is "over" their property. I was
wondering if there are any comparable laws regarding the tree trunk itself
and its major roots, which obviously run well under my neighbors property?
Help would be greatly appreciated -- thanks.

Keith
kegepet
at
nyc dot
rr dot
com

In article ,
Chet Hayes wrote:
I think you better recheck the law on air rights because I doubt it's
in your favor. Every state I've heard of gives owners the right to
cut branchs which overhang into the air space above their property.
That's the law here in NJ and I'd be willing to bet it's the same in
NY.

If it's only a few inchs of tree trunk thats in the way, the
reasonable solution is for them to just put the fence a few inchs away
from the property line. If it's more than that, I don't see how
you're going to save the tree.

It would also be a good idea to check local ordinances on fence size,
location, any necessary permits, etc.


At one house I owned, we simply made the tree part of the fence. Admittedly,
this was not a "privacy" fence -- it was a three-rail wood fence with a wire
backing to keep the dogs in. We just put a post on either side of the tree
and hooked the wire to the trunk. But even with a privacy fence, if the
trunk is solid and the tree tall, there's no reason one can't simply build
on either side and make some sort of attachment.

billo

"TheKeith" wrote in message
...
I live in Brooklyn, NY and in the backyard is a 30-yr old maple tree that
my
parents planted before I was even born. The tree was planted about 2 feet
away from the fence and now, 30 yrs later, is a bit of a monster--part of
the trunk is on my neighbors side.

I don't know the terminology, but there *are* ways a lawyer can arrange for
a neighbor to "use" part of another neighbor's property for structures, as
long as both parties agree. The agreement becomes part of some sort of
permanent record, so new owners of either property know the deal. Talk to a
local lawyer. It might be possible to slightly relocate the fence to
accomodate the tree.

On the sneakier note, I'd slip the tree expert $100 or some Yankees tickets,
in return for saying "Well...yeah...you could remove that root, but it would
make the tree MUCH more likely to fall in that direction during our next
hurricane".

:-)

Bill Oliver wrote:
Chet Hayes wrote:
At one house I owned, we simply made the tree part of the fence. Admittedly, this was not a "privacy" fence -- it was a three-rail wood fence with a wire backing to keep the dogs in. We just put a post on either side of the tree and hooked the wire to
the trunk. But even with a privacy fence, if the trunk is solid and the tree tall, there's no reason one can't simply build on either side and make some sort of attachment.

We did this with a big oak on my property, and also made sure that the are for the tree
was my responsiblity, that way the neighbor didn't have to pay anything. It seems a fair deal.
--
.... if I could hold her with me once again ... I would tell her that I miss her ... I
still miss Kyla ...
-till next time,
Jameson Stalanthas Yu -x- dolphins-cove.com
((remove the INVALID))

everybody brought up some interesting points--I appreciate everyone's help.
Let me update you on what has happened so far today and what we've found
out. I found a list of certified arborists on the International Society of
Arboriculture website and we had one of the guys come over. He basically
contradicted everything the first "tree surgeon" said, and said that the
damage already done is irreparable and that the tree is likely to die within
5 years--that major "scaffolding roots" had been cut and those are vital.
The guy is making a report for us and my father already contacted an
attorney, which is not a big deal since the uft (teacher's union) pays all
personal attorney fees as part of my father's retirement plan. The attorney
said that they have absolutely no right to cut the tree even if it
encroaches on their property--it's still our property and they are liable
for damages. He said that there was precedent for such circumstances and
that they are in our favor. Additionally, my father contacted the insurance
company who said they would reimburse us for any costs or damages, but that
they would then sue the neighbors themselves.

Well, I'm happy the neighbors will get their just-deserts (hopefully) but
I'm sorry it's all coming at the expense of a beautiful 30-yr old silver
maple. The last fence that was put up actually went more on my neighbors
side (old neighbor--now deceased) in order to accomodate the tree. I'll
never figure out assholes like this, who come in and destroy the integrity
of the property in order to make way for stupid fences. These very same
people tore down a nice mature evergreen on their side (planted by the very
same deceased neighbor) to make room for their ac units. It's not like we
live on a beach where trees can hurt a million dollar view--we live in
brooklyn!!! "Dr. Rev. Chuck, M.D., P.A.", in his reply, made a comment about
the tree making their ac units more efficient--in our case this is true. If
and when our tree comes down, the neighbor's ac's will be less efficient (I
hope a lot less)--since our maple shades the entire section of their
property with the condensors.

As soon as I get a hold of whatever law or precedent is in our favor, I'll
post it to my website and link you to it.

thanks again




"TheKeith" wrote in message
...
I live in Brooklyn, NY and in the backyard is a 30-yr old maple tree that
my
parents planted before I was even born. The tree was planted about 2 feet
away from the fence and now, 30 yrs later, is a bit of a monster--part of
the trunk is on my neighbors side. They are currently putting up a big
fence
and have already managed to convince my parents to let them cut a chunk
away
from the very bottom of the trunk (my parents consulted a tree surgeon
first
of course, and he said it was ok)--now the neighbors are saying that they
need to cut what appears to be a major root (almost looks like part of the
trunk itself)--the tree surgeon is coming over again tomorrow, but I'm
fairly certain that this is a vital component to the survival of the tree.
My grandfather was a real estate attorney and some years before he died
looked up some law regarding trees and discovered something called "air
rights" or something like that, which basically provided that the branches
of a tree, as long as it doesn't physically touch a neighbors property may
not be cut by that neighbor even if it is "over" their property. I was
wondering if there are any comparable laws regarding the tree trunk itself
and its major roots, which obviously run well under my neighbors property?
Help would be greatly appreciated -- thanks.

Keith
kegepet
at
nyc dot
rr dot
com

Here's a link to a newspaper article that supports what I said
earlier, which is that usually a property owner can trim trees
overhanging into his yard. If the law were otherwise, the courts
would be full of cases where judges would have to decide which trees
could be trimmed and which ones couldn't. The law keeps things simple
and is fair. I think you'll find your lawyer doesn't know what he's
talking about, it sure wouldn't be the first time. But keep us
posted....


"http://www.startribune.com/stories/397/3871811.html




"TheKeith" wrote in message ...
everybody brought up some interesting points--I appreciate everyone's help.
Let me update you on what has happened so far today and what we've found
out. I found a list of certified arborists on the International Society of
Arboriculture website and we had one of the guys come over. He basically
contradicted everything the first "tree surgeon" said, and said that the
damage already done is irreparable and that the tree is likely to die within
5 years--that major "scaffolding roots" had been cut and those are vital.
The guy is making a report for us and my father already contacted an
attorney, which is not a big deal since the uft (teacher's union) pays all
personal attorney fees as part of my father's retirement plan. The attorney
said that they have absolutely no right to cut the tree even if it
encroaches on their property--it's still our property and they are liable
for damages. He said that there was precedent for such circumstances and
that they are in our favor. Additionally, my father contacted the insurance
company who said they would reimburse us for any costs or damages, but that
they would then sue the neighbors themselves.

Well, I'm happy the neighbors will get their just-deserts (hopefully) but
I'm sorry it's all coming at the expense of a beautiful 30-yr old silver
maple. The last fence that was put up actually went more on my neighbors
side (old neighbor--now deceased) in order to accomodate the tree. I'll
never figure out assholes like this, who come in and destroy the integrity
of the property in order to make way for stupid fences. These very same
people tore down a nice mature evergreen on their side (planted by the very
same deceased neighbor) to make room for their ac units. It's not like we
live on a beach where trees can hurt a million dollar view--we live in
brooklyn!!! "Dr. Rev. Chuck, M.D., P.A.", in his reply, made a comment about
the tree making their ac units more efficient--in our case this is true. If
and when our tree comes down, the neighbor's ac's will be less efficient (I
hope a lot less)--since our maple shades the entire section of their
property with the condensors.

As soon as I get a hold of whatever law or precedent is in our favor, I'll
post it to my website and link you to it.

thanks again




"TheKeith" wrote in message
...
I live in Brooklyn, NY and in the backyard is a 30-yr old maple tree that
my
parents planted before I was even born. The tree was planted about 2 feet
away from the fence and now, 30 yrs later, is a bit of a monster--part of
the trunk is on my neighbors side. They are currently putting up a big
fence
and have already managed to convince my parents to let them cut a chunk
away
from the very bottom of the trunk (my parents consulted a tree surgeon
first
of course, and he said it was ok)--now the neighbors are saying that they
need to cut what appears to be a major root (almost looks like part of the
trunk itself)--the tree surgeon is coming over again tomorrow, but I'm
fairly certain that this is a vital component to the survival of the tree.
My grandfather was a real estate attorney and some years before he died
looked up some law regarding trees and discovered something called "air
rights" or something like that, which basically provided that the branches
of a tree, as long as it doesn't physically touch a neighbors property may
not be cut by that neighbor even if it is "over" their property. I was
wondering if there are any comparable laws regarding the tree trunk itself
and its major roots, which obviously run well under my neighbors property?
Help would be greatly appreciated -- thanks.

Keith
kegepet
at
nyc dot
rr dot
com

That one lawyer is not the only one I've heard this from. Also, I found
this:
http://public.findlaw.com/real_estat...4F351504F.html
I should point out that it would be absolutely impossible for that neighbor
to trim the branches of the tree that are above his side of the property
without killing the tree, since as far as the branches go, there's as much
on his side as on our side.

btw, I'm not sure what you linked me to was an actual law, but it definately
over-simplifies what are much more complicated circumstances in my case. The
"law" is not fair at all if it allows them to kill a tree because it's
partially on their property.

Anyway, the legal proceedings have begun; I'll keep everyone posted.




"Chet Hayes" wrote in message
m...
Here's a link to a newspaper article that supports what I said
earlier, which is that usually a property owner can trim trees
overhanging into his yard. If the law were otherwise, the courts
would be full of cases where judges would have to decide which trees
could be trimmed and which ones couldn't. The law keeps things simple
and is fair. I think you'll find your lawyer doesn't know what he's
talking about, it sure wouldn't be the first time. But keep us
posted....


"http://www.startribune.com/stories/397/3871811.html




"TheKeith" wrote in message
...
everybody brought up some interesting points--I appreciate everyone's
help.
Let me update you on what has happened so far today and what we've found
out. I found a list of certified arborists on the International Society
of
Arboriculture website and we had one of the guys come over. He basically
contradicted everything the first "tree surgeon" said, and said that the
damage already done is irreparable and that the tree is likely to die
within
5 years--that major "scaffolding roots" had been cut and those are
vital.
The guy is making a report for us and my father already contacted an
attorney, which is not a big deal since the uft (teacher's union) pays
all
personal attorney fees as part of my father's retirement plan. The
attorney
said that they have absolutely no right to cut the tree even if it
encroaches on their property--it's still our property and they are
liable
for damages. He said that there was precedent for such circumstances and
that they are in our favor. Additionally, my father contacted the
insurance
company who said they would reimburse us for any costs or damages, but
that
they would then sue the neighbors themselves.

Well, I'm happy the neighbors will get their just-deserts (hopefully)
but
I'm sorry it's all coming at the expense of a beautiful 30-yr old silver
maple. The last fence that was put up actually went more on my neighbors
side (old neighbor--now deceased) in order to accomodate the tree. I'll
never figure out assholes like this, who come in and destroy the
integrity
of the property in order to make way for stupid fences. These very same
people tore down a nice mature evergreen on their side (planted by the
very
same deceased neighbor) to make room for their ac units. It's not like
we
live on a beach where trees can hurt a million dollar view--we live in
brooklyn!!! "Dr. Rev. Chuck, M.D., P.A.", in his reply, made a comment
about
the tree making their ac units more efficient--in our case this is true.
If
and when our tree comes down, the neighbor's ac's will be less efficient
(I
hope a lot less)--since our maple shades the entire section of their
property with the condensors.

As soon as I get a hold of whatever law or precedent is in our favor,
I'll
post it to my website and link you to it.

thanks again




"TheKeith" wrote in message
...
I live in Brooklyn, NY and in the backyard is a 30-yr old maple tree
that
my
parents planted before I was even born. The tree was planted about 2
feet
away from the fence and now, 30 yrs later, is a bit of a monster--part
of
the trunk is on my neighbors side. They are currently putting up a big
fence
and have already managed to convince my parents to let them cut a
chunk
away
from the very bottom of the trunk (my parents consulted a tree surgeon
first
of course, and he said it was ok)--now the neighbors are saying that
they
need to cut what appears to be a major root (almost looks like part of
the
trunk itself)--the tree surgeon is coming over again tomorrow, but I'm
fairly certain that this is a vital component to the survival of the
tree.
My grandfather was a real estate attorney and some years before he
died
looked up some law regarding trees and discovered something called
"air
rights" or something like that, which basically provided that the
branches
of a tree, as long as it doesn't physically touch a neighbors property
may
not be cut by that neighbor even if it is "over" their property. I was
wondering if there are any comparable laws regarding the tree trunk
itself
and its major roots, which obviously run well under my neighbors
property?
Help would be greatly appreciated -- thanks.

Keith
kegepet
at
nyc dot
rr dot
com

In article ,
(Chet Hayes) wrote:

Here's a link to a newspaper article that supports what I said
earlier, which is that usually a property owner can trim trees
overhanging into his yard. If the law were otherwise, the courts
would be full of cases where judges would have to decide which trees
could be trimmed and which ones couldn't. The law keeps things simple
and is fair. I think you'll find your lawyer doesn't know what he's
talking about, it sure wouldn't be the first time. But keep us
posted....


"http://www.startribune.com/stories/397/3871811.html


There are no doubt regional laws that get overly specific what can &
cannot be done to or about trees on neighbors' property or on public
property & roadsides. What is rarely true of the Law is "it keeps things
simple." If it were simple one wouldn't require attorneys, they'd just
tell their story to a judge & expect a fair outcome as in small claims
court. Unfair outcomes are a commonplace because issues have to conform to
the law, rather than the law conforming to fairness.

And there certainly ARE civil cases that have found damages against a
person who injured neighbors' trees without trespass. Any apples (as
example) hanging into the next yard can be harvested at will by that
neighbor, or the branch removed entirely if that neighbor decides it is in
the way, or roots might be removed if they are lifting walkways or
whatever. All that can be done, but the doer had better consider the
possibility of consequences. For if lasting damage does result from, say,
an amateurish pruning or removal of a root, OR if it can be found in a
court to have been conducted in malice, OR to have resulted in predictable
harm to the main body of a tree, there is every good chance of winning
damages.

There would first have to be good (justifiable) cause for the pruning or
removal of a root or main limb; it would then have to be done skillfully
so that injury to the main tree was not a predictable outcome (just
wacking at it cuz it's in your way would qualify as malice aforethought);
& there would have to have been no intent to do harm. All these factors
met, it would be difficult to find damages against someone who acted on
their own property without malice aforethought in a manner that a person
of average intelligence could never have thought could cause injury.

It is a matter of property rights vs property rights. You can do pretty
much anything you please on your own property UNTIL it impacts your
neighbor. Otherwise it would end up legal to spray herbicides all over the
portions of a tree that reached over onto your property, & when it killed
the whole tree, so what.

-paghat the ratgirl

--
"Of what are you afraid, my child?" inquired the kindly teacher.
"Oh, sir! The flowers, they are wild," replied the timid creature.
-from Peter Newell's "Wild Flowers"
See the Garden of Paghat the Ratgirl: http://www.paghat.com/

"TheKeith" wrote in message
...
snip

Anyway, the legal proceedings have begun; I'll keep everyone posted.

Darn. And I was hoping to see it on 'The Peoples Court'... ;-)

thanks for that explanation. I have pictures that convey pretty well that
what they cut was not done, at all, "skillfully." Also, they have absolutely
no justifiable cause to have touched the tree since the only reason the tree
was cut was to make way for a crappy vinyl fence, which could have more
easily been adapted to accomodate the tree rather than the converse. These
people have wanted to get rid of that tree since day-one, and have even made
comments about how they can't grow tomatoes and stuff because of it. When we
gave them a copy of the arborist's report, they disregarded it and held firm
in their intentions to further damage the tree--saying, "well if it has to
be removed then it has to be removed"--I'm paraphrasing, but they were
saying that the tree had to be removed not just cut for the fence. I think
it's pretty clear they're intent on getting rid of the tree altogether.


"paghat" wrote in message
news
In article ,
(Chet Hayes) wrote:

Here's a link to a newspaper article that supports what I said
earlier, which is that usually a property owner can trim trees
overhanging into his yard. If the law were otherwise, the courts
would be full of cases where judges would have to decide which trees
could be trimmed and which ones couldn't. The law keeps things simple
and is fair. I think you'll find your lawyer doesn't know what he's
talking about, it sure wouldn't be the first time. But keep us
posted....


"http://www.startribune.com/stories/397/3871811.html


There are no doubt regional laws that get overly specific what can &
cannot be done to or about trees on neighbors' property or on public
property & roadsides. What is rarely true of the Law is "it keeps things
simple." If it were simple one wouldn't require attorneys, they'd just
tell their story to a judge & expect a fair outcome as in small claims
court. Unfair outcomes are a commonplace because issues have to conform to
the law, rather than the law conforming to fairness.

And there certainly ARE civil cases that have found damages against a
person who injured neighbors' trees without trespass. Any apples (as
example) hanging into the next yard can be harvested at will by that
neighbor, or the branch removed entirely if that neighbor decides it is in
the way, or roots might be removed if they are lifting walkways or
whatever. All that can be done, but the doer had better consider the
possibility of consequences. For if lasting damage does result from, say,
an amateurish pruning or removal of a root, OR if it can be found in a
court to have been conducted in malice, OR to have resulted in predictable
harm to the main body of a tree, there is every good chance of winning
damages.

There would first have to be good (justifiable) cause for the pruning or
removal of a root or main limb; it would then have to be done skillfully
so that injury to the main tree was not a predictable outcome (just
wacking at it cuz it's in your way would qualify as malice aforethought);
& there would have to have been no intent to do harm. All these factors
met, it would be difficult to find damages against someone who acted on
their own property without malice aforethought in a manner that a person
of average intelligence could never have thought could cause injury.

It is a matter of property rights vs property rights. You can do pretty
much anything you please on your own property UNTIL it impacts your
neighbor. Otherwise it would end up legal to spray herbicides all over the
portions of a tree that reached over onto your property, & when it killed
the whole tree, so what.

-paghat the ratgirl

--
"Of what are you afraid, my child?" inquired the kindly teacher.
"Oh, sir! The flowers, they are wild," replied the timid creature.
-from Peter Newell's "Wild Flowers"
See the Garden of Paghat the Ratgirl: http://www.paghat.com/

The boundary tree discussion with the trunk split across the property
line seems to fit your situation. That's the first time I've seen a
reference to a tree actually spanning the line.

I also agree with most of what Ratgirl had to say. Anybody who trims
trees overhanging into their yard has to use reasonable prudence. Of
course your neighbor's defense will be that he is co-owner of the tree
and had the advice of the first tree surgeon that advised the pruning
could be safely done. That may be a good defense. The cavalier
statements they made to you, for which I hope you have witnesses, are
certainly in your favor.

I never implied the purpose of courts was to judge a situation in
terms of overall fairness. Quite the opposite, the law by allowing
people in general to trim trees hanging into their air space is a law
that is fair in it's balance and avoids having a judge decide every
issue of which tree can be pruned.

Here's a question. Has the property line been accurately surveyed so
that you know exactly where the line is? And if the tree is still
salvagable now, have you considered getting an immediate court order
to prevent them from doing anything further until it's resolved?



"TheKeith" wrote in message ...
thanks for that explanation. I have pictures that convey pretty well that
what they cut was not done, at all, "skillfully." Also, they have absolutely
no justifiable cause to have touched the tree since the only reason the tree
was cut was to make way for a crappy vinyl fence, which could have more
easily been adapted to accomodate the tree rather than the converse. These
people have wanted to get rid of that tree since day-one, and have even made
comments about how they can't grow tomatoes and stuff because of it. When we
gave them a copy of the arborist's report, they disregarded it and held firm
in their intentions to further damage the tree--saying, "well if it has to
be removed then it has to be removed"--I'm paraphrasing, but they were
saying that the tree had to be removed not just cut for the fence. I think
it's pretty clear they're intent on getting rid of the tree altogether.


"paghat" wrote in message
news
In article ,
(Chet Hayes) wrote:

Here's a link to a newspaper article that supports what I said
earlier, which is that usually a property owner can trim trees
overhanging into his yard. If the law were otherwise, the courts
would be full of cases where judges would have to decide which trees
could be trimmed and which ones couldn't. The law keeps things simple
and is fair. I think you'll find your lawyer doesn't know what he's
talking about, it sure wouldn't be the first time. But keep us
posted....


"http://www.startribune.com/stories/397/3871811.html


There are no doubt regional laws that get overly specific what can &
cannot be done to or about trees on neighbors' property or on public
property & roadsides. What is rarely true of the Law is "it keeps things
simple." If it were simple one wouldn't require attorneys, they'd just
tell their story to a judge & expect a fair outcome as in small claims
court. Unfair outcomes are a commonplace because issues have to conform to
the law, rather than the law conforming to fairness.

And there certainly ARE civil cases that have found damages against a
person who injured neighbors' trees without trespass. Any apples (as
example) hanging into the next yard can be harvested at will by that
neighbor, or the branch removed entirely if that neighbor decides it is in
the way, or roots might be removed if they are lifting walkways or
whatever. All that can be done, but the doer had better consider the
possibility of consequences. For if lasting damage does result from, say,
an amateurish pruning or removal of a root, OR if it can be found in a
court to have been conducted in malice, OR to have resulted in predictable
harm to the main body of a tree, there is every good chance of winning
damages.

There would first have to be good (justifiable) cause for the pruning or
removal of a root or main limb; it would then have to be done skillfully
so that injury to the main tree was not a predictable outcome (just
wacking at it cuz it's in your way would qualify as malice aforethought);
& there would have to have been no intent to do harm. All these factors
met, it would be difficult to find damages against someone who acted on
their own property without malice aforethought in a manner that a person
of average intelligence could never have thought could cause injury.

It is a matter of property rights vs property rights. You can do pretty
much anything you please on your own property UNTIL it impacts your
neighbor. Otherwise it would end up legal to spray herbicides all over the
portions of a tree that reached over onto your property, & when it killed
the whole tree, so what.

-paghat the ratgirl

--
"Of what are you afraid, my child?" inquired the kindly teacher.
"Oh, sir! The flowers, they are wild," replied the timid creature.
-from Peter Newell's "Wild Flowers"
See the Garden of Paghat the Ratgirl: http://www.paghat.com/

Can your neighbor leagally build a fence on the property line? Where I live
the fence has to be 2 feet from the property line unless the neighbor gives
permission to build on the line. It may be worth while to look into rite
ways and where the property line is exactly.

"TheKeith" wrote in message
...
I live in Brooklyn, NY and in the backyard is a 30-yr old maple tree that
my
parents planted before I was even born. The tree was planted about 2 feet
away from the fence and now, 30 yrs later, is a bit of a monster--part of
the trunk is on my neighbors side. They are currently putting up a big
fence
and have already managed to convince my parents to let them cut a chunk
away
from the very bottom of the trunk (my parents consulted a tree surgeon
first
of course, and he said it was ok)--now the neighbors are saying that they
need to cut what appears to be a major root (almost looks like part of the
trunk itself)--the tree surgeon is coming over again tomorrow, but I'm
fairly certain that this is a vital component to the survival of the tree.
My grandfather was a real estate attorney and some years before he died
looked up some law regarding trees and discovered something called "air
rights" or something like that, which basically provided that the branches
of a tree, as long as it doesn't physically touch a neighbors property may
not be cut by that neighbor even if it is "over" their property. I was
wondering if there are any comparable laws regarding the tree trunk itself
and its major roots, which obviously run well under my neighbors property?
Help would be greatly appreciated -- thanks.

Keith
kegepet
at
nyc dot
rr dot
com