When I was a kid, the neighbor’s plum tree grew over the fence into our yard. My siblings and I picked the ripe fruit and made plum jam with Dad.
Would the neighbor have had a right to be upset with us for picking “his” fruit? If we didn’t like the fruit or the tree, would we have had the right to chop off the branches that were growing into our backyard?
Attorney Robert Sakai offers the following information:
Short answer: You have the right to pick the fruit. You also have the right to chop off branches on your side, however you can’t do it in a way that would damage the tree and you can’t go onto the neighbor’s property to do so.
The law regarding the obligations of co-owners of boundary trees is that both must act reasonably and not damage the trees to the detriment of a neighbor. Booska v Patel (1994) 24 CA4th 1786, 30 CR2d 241. This means that a landowner has the right to cut the branches or roots of a neighbor’s tree to the extent that they encroach on to the landowner’s property, but this right is not absolute and there are limitations. Booska v Patel, supra. Furthermore, the landowner may not go onto the neighbor’s land and cut down the tree. Fick v Nilson (1950) 98 CA2d 683, 220 P2d 752.
Arborists are consulted in boundary disputes to advise whether and to what extent overhanging tree branches from a neighbor’s tree can be cut back or removed without causing unnecessary injury to the tree, and also to advise on the most reasonable method to mitigate root intrusion. On the law of boundary trees, see §8.30. An arborist may also be needed to identify the species of tree because many species are protected by local ordinance. See §10.14. In easement disputes, plant experts, such as botanists, horticulturists, and biologists, are retained to conduct forensic evaluations of plants to establish whether the disputed area has been traveled for the statutory 5-year period. If relocating an easement is an option, counsel should consult these experts to determine which of the proposed relocation areas minimize impacts on trees and vegetation.
If the dispute involves blocked views or plant encroachment, and removal of vegetation is an issue, local ordinances may potentially affect the recommendations of plant experts. Some municipalities, for example, have view ordinances that give property owners the right to maintain views existing at the time the property was purchased and the right to require that trees blocking these views be trimmed or topped. See, e.g., Oakland Mun C, ch 15.52 (Views). Other municipalities protect native tree species by requiring special permission to remove these protected trees. See, e.g., Glendale Mun C, ch 12.44. See other ordinances cited in §§10.14-10.15.
CC § 834. Trees on Land of Two or More Owners: Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common.
So, go out there and make some plum jam!