Neighbours, Overhang – and the Disposal of Cut-off Branches

Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby victor508 » Tue Jul 17, 2012 9:40 pm

Despair Wrote:
but we all know theres one person on this forum who insists on nit picking anything i post


I think that should read 2 people.

Victor.
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby despair » Tue Jul 17, 2012 10:37 pm

ROFL
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby kipper » Tue Jul 17, 2012 11:24 pm

Treeman wrote:
juliet wrote:I agree Will and although I think that someone has mentioned fly tipping on here previously and I don't think that it is. I didn't think fly tipping applied to be privately owned land (although always happy to be corrected).

Obviously as mentioned earlier - could have been another thread mind - the case law that established that the offcut belonged to the tree owner was made at a time when there was some value to the offcut so all we need now is for someone to keep the offcut and then someone bring another case to see what the opinion is these days :D

I think that in an ideal world, we should ask the neighbour if they want them back and if not dispose ourselves. But I think that if something returns offcuts carefully, then there isn't much that the tree owner can do.

I lobbed mine while the policeman watched :twisted:



That's exactly the way of things.
.

Except return them. Tit-for-tat, ad infinitum.
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby WILL*REMAIN*STRONG » Tue Jul 17, 2012 11:33 pm

juliet wrote:I lobbed mine while the policeman watched :twisted:


:lol: :lol:
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby hzatph » Tue Jul 17, 2012 11:52 pm

This one comes up regularly and there are differences of opinion. Please see the following court case.

Kings Bench Division (Avory & Lush, JJ). Feb 17th 1919

It can be summarised as:

The defendant picked some apples from the branches of his neighbours tree that overhung his garden and sold them. It was held that the neighbour had a right to cut overhanging branches but he had no rights of ownership on the cut branches or apples growing on them. The county court judge gave judgement to the tree owner. The defendant was entitled to remove the branches but could not use the removed branches (or fruit) for his own use.

The defendant appealed but this was dismissed.


During the appeal it was also cited that fruit remains the property of the tree owner whether carried by overhanging branches or whether blown off by the wind.


It is therefore clear that the branches belong to the tree owner and so must be offered back.
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby despair » Wed Jul 18, 2012 12:03 am

"it is therefore clear that the branches belong to the tree owner and MUST BE OFFERED BACK "


thats what i said in the first place
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby Anthony Westoby » Wed Jul 18, 2012 12:33 am

Despair,
Yes, it's obvious to me that you are right. Never mind what others may say. Common sense however, always will rule the day I think and I speak as one who has used the services of lots of treemen over the decades as I have a huge Black Poplar on the boundary.

I also have a lot of neighbours adjacent, as my property runs alongside the next road (we're the last long garden)

One old neighbour would regularly throw the branches (The black Poplar is a self - pruner) over the fence, until he missed my wife by inches whilst she was hanging out the washing. After she'd told him how inconsiderate he was, he never did it again.

Fast forward ten years and a new owner in that property ---------- I'm sat in my consevatory, half asleep when I saw a telescopic arm arising from his garden, on the end of which was a curved saw ---- couldn't see the operator but he cut through a huge branch and it fell with a huge crash onto his shed.

I never saw that branch again, or heard anything about it. The chap now has a new metal shed.

To tell the truth, I,too, was glad to see it go. Both sides of the coin you might say.

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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby juliet » Wed Jul 18, 2012 7:37 am

Sorry to go on and I know that we have had this discussion before. It isn't 'picking' on anyone I promise and I know that lots of you have a different opinion to me and Treeman on this one. And one last stab at this :)

The problem that I have, as I said earlier....the law support two things. 1. that you can cut back to the boundary 2. that the offcut belongs to tree owner. I think that it is clear that all of us on this thread support that view and always have? The 1919 case was the one that I was talking about orginally although I didn't know off the top of my head the dates/details.

But the law is silent after that. In that case the guy wanted the offcut because it had value. Today it could be a different view. So for me there is no 'should offer back, must offer back' etc. No-one has ever proved to my satisfaction that that is the case and there isn't anything that I have seen to support that view?

It goes back to being reasasonable - as in the man on the Clapham Omnibus view of reasonableness (if that is a word :) ) - and I remain convinced that you can return the offcuts carefully.

I am always ready to change my view about this is if someone can tell me:

If I put the offcuts carefully into your garden without damaging anything, you decide to take me to court (and no worrying about the costs or stress) what case law or legislation are you going to rely on in court to support your view?
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby Treeman » Wed Jul 18, 2012 7:38 am

despair wrote:"it is therefore clear that the branches belong to the tree owner and MUST BE OFFERED BACK "


thats what i said in the first place


People, this judgement is nearly a hundred years old, and apples can now be bought cheaply in any supermarket.

If you read the judgement rather than the many descriptions, the case revolves arround apples, the defendant sold the apples for profit and was found guilty of theft by conversion.

The judgement says you can't keep the materials for your own use so when they are carted off to contractor disposal they aren't used for the benefit of the punter, indeed there is a cost implication to the disposal.

Even with the firewood market as buoyant as it was in recent times the value of a few branches will never outweigh the cost of removing them processing them to firewood seasoning, advertising and selling them. Any case for losses woud be de minimis.

So i will say it once again you are wrong, there is no MUST but there is plenty of scope for the "overhangee" to recover disposal costs if the other side don't accept the arrisings. Anyone bringing an action for compensation for the removed branches would likely face a counter suit for costs arrisings from the disposal of the waste said branches, it's a bit of a negative equity thing.
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby juliet » Wed Jul 18, 2012 8:04 am

Yes, that is a good point Treeman about the costs to dispose of.

My defence....I relied on Lemon V Webb to prove that I could cut back to boundary, I then relied on the 1919 case that the offcut belonged to the neighbour...I don't speak to the neighbour (a mutual thing) so I could not have entered into a discussion and the police talked to me about conversion, advised me to return...and I may not have had the resources to be able to have diposed of myself and I did it in a perfectly reasonable manner.
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby WILL*REMAIN*STRONG » Wed Jul 18, 2012 12:12 pm

I would hope a court/judge could see that returning branches is the right thing to do. Why would any judge feel that someone footing the bill to maintain another person’s tree, should also foot the bill to dispose of what was a trespass in the first place. Returning branches responsibly would be what most people would advise, just through sheer common sense.

If the police confirm this, case law or not, a judge would not look unkindly at a person doing what the police advise!

I'm still laughing at the thought of a police officer standing there whilst you lob the branches over the fence. Oh please someone fit CCTV and post this scenario on YouTube! :lol:
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby Anthony Westoby » Wed Jul 18, 2012 6:29 pm

Treeman,

I will always defer to the opinions of an experienced hand like yourself but don't you think your response to 'Despair' a little harsh?
After all she's only giving the opinions of a Layman, as indeed you yourself are.

I happen to think 'Despair' is correct --- after all, the situation is then easily remedied if responsible people use common sense.

Not everyone out there gets into conflict ------ from the nature of your posts it would seem that you get a fair bit.

I am at a loss to understand how it is you can be so pedantic in your replies ----- this area, fences, trees, hedgelines, etc. has and always will be a bone of contention to some folks.
I concur absolutely about the apple situation but I am reminded of a universal truth in Yorkshire --- 'Some folk will go anywhere for a little apple.'

Juliet,

Yes I am in complete accord with your reply about the policeman stood watching ---------- I too was taken completely aback and shocked to the very core when my own NFH, needing the room to appropriate my RoW for his own purposes, showed the two police ladies I'd called in a scrap of paper from the LR and then proceeded to take out with a JCB, my deliniation fencing while they stood and watched. To keep the peace they said! (The fence was MY property)

Truth is, until there are iron - clad laws in this country to protect people from the actions of others there will be no proper way to deal with a civil action of this type unless one has the wherewithall to pay the Barristers!

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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby Treeman » Wed Jul 18, 2012 8:43 pm

I will always defer to the opinions of an experienced hand like yourself but don't you think your response to 'Despair' a little harsh?


No, it's born of exasperation

After all she's only giving the opinions of a Layman, as indeed you yourself are
.

Well she is giving the opinion of a layman but it's generally someone else and it is unchecked. I would like to thing mine is the opinion of an expert practitioner.

Not everyone out there gets into conflict ------ from the nature of your posts it would seem that you get a fair bit.


I see a fair bit of conflict, it's generally between neighbours arguing ove a tree, hedge, fence or whatever else take their fancy.

I am at a loss to understand how it is you can be so pedantic in your replies


The law stands and falls on detail.


I concur absolutely about the apple situation but I am reminded of a universal truth in Yorkshire --- 'Some folk will go anywhere for a little apple
.'

The world is not Yorkshire
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby hzatph » Wed Jul 18, 2012 11:40 pm

Treeman wrote:
despair wrote:"it is therefore clear that the branches belong to the tree owner and MUST BE OFFERED BACK "


thats what i said in the first place


People, this judgement is nearly a hundred years old, and apples can now be bought cheaply in any supermarket.

If you read the judgement rather than the many descriptions, the case revolves arround apples, the defendant sold the apples for profit and was found guilty of theft by conversion.

The judgement says you can't keep the materials for your own use so when they are carted off to contractor disposal they aren't used for the benefit of the punter, indeed there is a cost implication to the disposal.

Even with the firewood market as buoyant as it was in recent times the value of a few branches will never outweigh the cost of removing them processing them to firewood seasoning, advertising and selling them. Any case for losses woud be de minimis.

So i will say it once again you are wrong, there is no MUST but there is plenty of scope for the "overhangee" to recover disposal costs if the other side don't accept the arrisings. Anyone bringing an action for compensation for the removed branches would likely face a counter suit for costs arrisings from the disposal of the waste said branches, it's a bit of a negative equity thing.

So, if you have a copy of this judgement please post it and we can then see if the "for profit" motive is important or if it is about depriving the owner of their property regardless of value.

If you have more recent case law refuting this case again please post it, failing which it is as despair said and branches must be offered back.

Nobody is claiming that the case I posted demonstrates that either party is responsible for disposal costs.

Age of judgement is absolutely not an impediment - for example Rylands v Fletcher is almost 150 year old and is still an incredibly important case for environmental liability. http://en.wikipedia.org/wiki/Rylands_v_Fletcher
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Re: Neighbours, Overhang – and the Disposal of Cut-off Branc

Postby Treeman » Thu Jul 19, 2012 8:42 am

hzatph wrote:
Treeman wrote:
despair wrote:"it is therefore clear that the branches belong to the tree owner and MUST BE OFFERED BACK "


thats what i said in the first place


People, this judgement is nearly a hundred years old, and apples can now be bought cheaply in any supermarket.

If you read the judgement rather than the many descriptions, the case revolves arround apples, the defendant sold the apples for profit and was found guilty of theft by conversion.

The judgement says you can't keep the materials for your own use so when they are carted off to contractor disposal they aren't used for the benefit of the punter, indeed there is a cost implication to the disposal.

Even with the firewood market as buoyant as it was in recent times the value of a few branches will never outweigh the cost of removing them processing them to firewood seasoning, advertising and selling them. Any case for losses woud be de minimis.

So i will say it once again you are wrong, there is no MUST but there is plenty of scope for the "overhangee" to recover disposal costs if the other side don't accept the arrisings. Anyone bringing an action for compensation for the removed branches would likely face a counter suit for costs arrisings from the disposal of the waste said branches, it's a bit of a negative equity thing.

So, if you have a copy of this judgement please post it and we can then see if the "for profit" motive is important or if it is about depriving the owner of their property regardless of value.

If you have more recent case law refuting this case again please post it, failing which it is as despair said and branches must be offered back.

Nobody is claiming that the case I posted demonstrates that either party is responsible for disposal costs.

Age of judgement is absolutely not an impediment - for example Rylands v Fletcher is almost 150 year old and is still an incredibly important case for environmental liability. http://en.wikipedia.org/wiki/Rylands_v_Fletcher



You can google the judgement for yourself and draw your own opinions, judgements (as do statute laws) do go obsolete, this ones obsolete because the value of the branches is far outweighed by the value of any counter suit for their disposal. This is probably never going to make a precedent because, as i said, times change and these days the cost of getting above magistrates is prohibitive.

I agree that the rylands case is still pertinent but then it got as far as the lords, it was a groundbreaking case and, it's about more than the value of a few apples isn't it?

I am not going to ask you to show me a recent case where someone was prossecuted for "stealing" branches because we both know this stuff is unlikely to get above magistrates but as long as the value of the arrisings is de minimis and the costs of disposing of them is way more than any value they may have I doubt you would find anything.

I do have personal experience of a couple of cases where neighbours have recovered the cost of disposal when a neighbour declined the branches, IF any of these ever get higher than magistrates it will set a precedent that liability for the arrisings must be accepted by the tree owner. Somehow I don't see that kind of financial madness happening but you never know.

Until then the likelihood of a successful prosecution for theft of branches are negligable. As I said, contractors across the country do this on a daily basis, a prosecution for theft would be have major repercussions for the industry and every household in the country.
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