VBJ September 22

THE VALLEY BUSINESS JOURNAL
12 www.TheValleyBusinessJournal.com
September 2022
Legal Issues Relating to a Tree that Sits on the
Boundary of Two or More Adjoining Properties
By Michael G. Kerbs, Esq.
As the old saying goes, “you can’t
pick your neighbors.” In Southern
California where property is a valuable
commodity, it is common for adjoining
properties to be close in proximity. One
issue that is relatively common due to
the lack of significant distance between
neighbors is the responsibilities of property
owners when a tree is located on
or near the boundary that separates the
properties.
In California, in the situation where
the trunk of a tree is entirely on one
property, but there are roots or branches
that cross over on to the adjoining property,
there are restrictions on the actions
available to the adjoining property owner.
Ordinarily, when the roots of a tree from
one property grow into the land of the
adjoining property, the neighboring property
owner has the right to cut the roots.
However, there is an exception when
cutting the roots kills or injures the tree.
In Booska v. Patel (1994) 24 Cal.
App.4th 1786, the court held that there
is no absolute privilege for cutting the
roots when the result causes damage to
or kills the tree and therefore the party
that injures the tree is responsible for the
damage caused to the tree.
Another set of possible issues is
involved when the tree is located on the
boundary and is growing on both properties.
Under Civil Code Section 834,
trees whose trunks stand partly on the
property of two or more owners belong
to them in common. Neither owner is free
to cut down the tree without the consent
of the other. Also, neither property owner
is entitled to trim or cut away part of the
tree if it causes injury to the tree. (Kallis
v. Sones (2012) 208 Cal.App.4th 1274,
1278.)
Lastly, in the December 2020 case
of Russell v. Man, the Court addressed
the issue of whether a property owner
can be held responsible for treble damages
under Civil Code section 3346, and
Code of Civil Procedure section 733,
if actions taken entirely on their own
property cause damage to a tree located
on an adjoining property. As set forth in
these statutes, for injuries to trees, the
measure of damages is three times the
value of the tree.
Russell involved two adjoining
properties in Big Bear and a mature
pine tree that was located entirely on the
plaintiff’s property, with roots growing
in part on the defendant’s property. The
defendant dug trenches on his property
and the trenching activity caused the pine
tree to die.
The trial court entered an award of
treble damages against the defendant
for three times the value of the tree.
The Court of Appeal in Russell reversed
the award of treble damages, holding
that both Civil Code section 3346(a)
and Code of Civil Procedure section
773 require an actual trespass onto the
plaintiff’s property to support an award
of treble damages.
Because all of the activity that caused
the tree to die occurred on the defendant’s
property, there was no trespass and thus
treble damages were not recoverable by
the plaintiff. The same result was reached
in the recent California Supreme Court
decision of Scholes v. Lambrith Trucking
Co. (2020) 8Cal.5th 1094.
In summary, all property owners
should act with care when deciding
whether to trim a tree that is situated in
whole or in part on an adjoining property.
Michael G. Kerbs, Esq. is the managing
partner at Reid & Hellyer, APC.
He specializes in business and real estate
litigation as well as writs and appeals.
Mr. Kerbs may be reached at (951)
682-1771.
“
Under Civil Code
Section 834, trees
whose trunks stand
partly on the property
of two or more owners
belong to them in
common. Neither
owner is free to cut
down the tree without
the consent of the other.
Also, neither property
owner is
entitled to trim or cut
away part of the
tree if it causes injury
to the tree.