BOUNDARY TREES: WHO OWNS THEM? WHO’S RESPONSIBLE?

Trees can be either an asset or a nuisance, depending on one’s perspective and situation. A tree that provides shade, privacy or other value to one person’s property may block the view of his neighbor or somehow interfere with the neighbor’s use and enjoyment of his own property.

Questions often arise about the ownership of trees growing on or near a boundary line between adjoining properties. Who has the legal responsibility for a tree’s care or removal? If the neighbors disagree over what is needed, whose interests should take priority?

Answers to these questions are sometimes difficult as the circumstances and equities almost always vary. The analysis must begin with determining the tree’s ownership. The rights and responsibility for care and maintenance of trees are vested in its owner, and ownership is determined by the location of the tree’s trunk. If the trunk is located entirely on A’s land — even if its limbs or branches may overhang onto B’s land — A is considered to be the tree’s owner. And as its owner, A has the sole right to preserve the tree or cut it down. This is true regardless of A’s motivation or the impact its removal would have on B or B’s land. Luke v. Scott, 187 N.E. 63 (Ind.App. 1933).

In resolving disputes over boundary trees over the years, Indiana courts have fashioned the following general rules:

• Even if a tree located on A’s land may pose a threat to B or B’s land, the laws of trespass generally prohibit B from coming onto A’s land to trim or remove the tree. However, in the case of a “danger tree” – one that is dead or weak and leaning and poses a risk of harm should it fall or be blown over by a storm — a court of equity might grant some relief to the neighbor if the likelihood of harm is proven to be real and imminent. However, formal notice to the tree’s owner should be given as that may result in voluntary remediation. The theoretical possibility of future harm from a leaning tree or the inconvenience associated with falling leaves or other debris is generally not grounds for legal relief in advance.

• If the limbs from A’s tree extend over the boundary line onto B’s land, B generally has the right to trim the limbs if necessary, but only to the extent they actually extend into B’s airspace. Luke v. Scott, 187 N.E. 63 (Ind.App. 1933). The same rule applies to tree roots that encroach onto neighboring property. Scheckel v. NLI, Inc., 953 N.E.2d 133 (Ind. Ct.App. 2011). B may trim the overhanging branches or cut the encroaching roots as needed, for example, to make room for a room addition, swimming pool or fence or to stop the buckling of a patio or driveway on B’s own land. But trimming tree limbs or roots for no reason other than spite may land one in legal trouble if the tree should die as a result. And remember that local ordinances typically regulate how close to a boundary line structures may be built.

• Also remember that in performing any needed curative work, B may not come onto A’s land without permission. That would be trespass. But as long as his trimming does not extend beyond the boundary line, B is not responsible for any adverse impact on the tree. Alternatively, B could bring suit against A for the damages caused by the overhanging limbs or encroaching roots, but the difficulty of establishing any actual economic harm from encroaching limbs or roots makes a suit for damages impractical in most cases.

• In the unusual but possible situation where the tree’s trunk actually sits on the boundary line of adjoining parcels, the law considers the tree to be the common property of both landowners. In that situation neither owner acting alone has the right to remove or harm the tree without the other’s consent. Luke v. Scott, 187 N.E. 63 (Ind.App. 1933). Even minor trimming should not be undertaken without communication with the other tree owner.

• Indiana law does not recognize a landowner’s right to air, light or a scenic view from his own land. Wolf v. Forcum, 161 N.E.2d 175 (Ind.App. 1959). So, as long as done in compliance with applicable building codes and local zoning ordinances, an owner may build or maintain an otherwise legal, non-encroaching structure on his land despite an adverse impact on a neighbor’s view. Giller v. West, 69 N.E.548 (Ind. 1904); Justice v. CSX Trans., 908 F.2d 119 (7th Cir. 1990). Indiana courts have not addressed the situation but based on this principle a tree would likely be treated any the same way.

• In general, the law obligates landowners to periodically inspect their property and take reasonable care to maintain it so as to not pose a risk of harm to others. As a result, if they fail to identify and remedy dead or dangerous trees and harm results, they can be held liable for that harm. But property owners are not responsible for the unforeseeable results of storms or other natural events that befall what appear to be healthy trees. Acts of God are not the responsibility of anyone, and that’s one reason all landowners are wise to have their own insurance coverage.

• The particular care required of a tree owner will vary depending on a variety of circumstances including the tree’s species, condition, size and height, and proximity to neighboring structures or passing motorists and pedestrians and the nature of the activity on adjacent land. Another factor is whether the land is residential, urban or rural. Generally speaking, the more urbanized or populated the area, the greater the risk of harm to neighbors or the public and, therefore, the greater the care and attention expected of the property owner. See. e.g., Patterson v. Seavoy, 822 N.E.2d 206 (Ind. Ct.App. 2005); Marshall v. Erie Ins., 930 N.E.2d 628 (Ind. Ct.App. 2010); Miles v. Christenson, 724 N.E.2d 643 (Ind. Ct.App. 2000); Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991); May v. George, 910 N.E.2d 818 (Ind. Ct.App. 2009).

These principles established by common law courts are subject to change as society evolves or the circumstances vary. So keep in mind they may not apply in every situation or forever.

The determination of a boundary line is sometimes uncertain, and a professional land surveyor may be needed to verify or establish the actual location. Unfortunately, even surveyors will occasionally disagree about the boundary, and that is especially true where the deed record or a past survey is an old one.

Also remember that regardless of the location of a boundary line, longstanding maintenance practices by neighboring landowners or the existence of fences and natural objects that have been recognized or treated as the property line can also affect a determination of the legal boundary.

A judge who may end up deciding this type of dispute in court will likely expect neighboring landowners to communicate with each other in reasonable search of a fair solution before taking the law into their own hands or seeking recourse in court. Open-minded communications with the other party normally may result in an acceptable resolution and it may avoid a contentious, expensive, time consuming and unpredictable lawsuit.

June 2017

Kent M. Frandsen (kfrandsen@parrlaw.com)
PARR RICHEY FRANDSEN PATTERSON KRUSE LLP, Lebanon and Indianapolis, Indiana

The author is an Indiana attorney whose practice focuses on civil litigation. This article is for informational purposes only. It is not to be considered legal advice and does not form an attorney-client relationship with the reader. The facts and equities of each situation differ, so please contact an attorney to discuss your particular circumstances.