Arbor Day – When Trees Become Legal Cases


This photo of Angel Oak Tree is courtesy of TripAdvisor

National Arbor Day is celebrated every year on the last Friday in April.  This year, Arbor Day was Friday, April 27, 2018.  The customary observance is to plant a tree.  Why? Because trees do so many wonderful things.  They are simply amazing.  Trees clean air and water, slow climate change, ease poverty and hunger, prevent species loss, and feed the human soul. They even generate legal cases and help create law!

Texas leads the nation in the number of farms and ranches it contains, with 248,800 farms covering 130.2 million acres. It makes sense, then, that landowners in Texas occasionally have disputes regarding property lines, fences, and trees. Whether you live in the country or the city, it’s smart to know your rights and responsibilities about trees.

There are so many legal cases today involving trees that some attorneys actually specialize in this area of the law. When trees are the issue in a dispute, it is important to rely on an experienced attorney for advice. However, much expense, time, and anxiety could be avoided by understanding a few basics about trees and the law.  Here are a few frequently asked questions about tree disputes.

  1. Who owns a tree?

The person who owns the land on which the trunk of the tree stands. If the trunk straddles a property line, both land owners can claim an ownership interest.

  1. What right does a property owner have to trim a tree that belongs to a neighbor but has limbs or roots which overhang or grow onto an adjacent lot?

A property owner has the right to trim branches and roots that encroach onto her property from a tree belonging to a neighbor, but must exercise caution when trimming a tree or its roots. The following general rules apply to trimming a tree:

  • The tree can only be trimmed to the property line.
  • There is no right to trespass onto a neighbor’s property to trim a tree unless the limbs threaten to cause immediate and irreparable harm.
  • The tree cannot be cut down or otherwise destroyed to eliminate the problem. It can only be trimmed back.
  • The expense of the trimming is borne by the party doing the trimming
  1. What rights does the owner of a tree have when the tree is damaged or destroyed by a neighbor?

The tree owner may claim actual and exemplary damages, but not attorney’s fees.

In Wilen v. Falkenstein, 191 S.W.3d 791 (Tex.App.-Fort Worth 2006), the property owner brought a trespass action against the neighbor for causing a tree service to trim a tree on owner’s property. In the cases of trespassory damage to trees, the measure of damages is the diminution in the value of the land or, under some circumstances, the value of the trees destroyed or removed. Rochelle v. Carr, 418 S.W.2d 710, 711 (Tex.App.—San Antonio 1967) (citing Cummer–Graham Co. v. Maddox, 155 Tex. 284, 291, 285 S.W.2d 932, 936 (1956)).

If the thing destroyed or removed from real property, although a part thereof, has a value which can be accurately measured or ascertained without reference to the soil on which it stands, the recovery is the value of the thing thus destroyed or removed, and not the difference in the value of the land.  Id. at 935 citing Grell v. Lumsden, 206 Iowa 166, 220 N.W. 123, 125.
On the other hand if the trees have only a value with reference to the land such as for the purpose of shade or ornamentation or if they be fruit trees or young growth which has no market value, then the proper measure of damage would be the difference in the value of the land before and after. Cummer-Graham Co. at 936.

    In Wilen, the appellate court determined that it was within the jury’s discretion to award actual damages in the amount of $5,300.00 based on the intrinsic value of the cut tree, and exemplary damages in the amount of $18,000.

    Attorney fees were not recoverable as damages in landowner’s trespass action against neighbor for causing a tree service company to trim landowner’s tree while landowner was on vacation; action was not founded on the interpretation of a contract, and attorney fees were not authorized by statute.  Wilens, 191 at 804-805.

    1. Does it make any difference if a tree is dead or dying and creates an imminent danger to life or property?

    Unsound trees that are a threat to neighboring property owners do not have the same protection as a sound, healthy tree. If the danger is immediate, the general rule is that an adjacent property owner can take reasonable action, including removal of the tree, to prevent damage to his property. There are few, if any, court cases in Texas recognizing this, but I believe a landowner is justified in taking reasonable action to protect life or property.

    1. If the limbs of a healthy tree overhang the roof of a neighbor’s property, is the owner of the tree under a duty to trim the tree back to protect the roof of the neighbor?

    No, the tree owner does not have a duty to trim the tree. The adjacent landowner has the right to trim the tree back to the property line to protect his property and should exercise this right.

    1. Is an adjoining landowner liable for damage to property caused by tree limbs or roots from a tree located on the adjoining landowner’s property?

    At least one Texas court has said no, assuming the tree was healthy. A large tree located entirely on an adjoining lot grew into two large branches one of which overhung the house on the neighboring lot. A 90 mile per hour wind caused the overhanging portion of the tree to fall on the neighbor’s house, severely damaging it. The owner of the damaged house sued his neighbor for negligence in allowing the tree to overhang his house, alleging that the tree owner was negligent in allowing it to overhang the neighboring property and also alleging nuisance and trespass. The court dismissed the negligence allegation and said that trespass and nuisance required an intentional act by the neighbor. Since the neighbor did not intentionally cause the tree to overhang the neighbor’s house, the court held that the tree owner was not liable for damages.