Fallen leaves and fruit

Post Reply
IdefixUK
Posts: 610
Joined: Mon Jan 01, 2018 12:07 pm
Number of topics per page: 25

Re: Fallen leaves and fruit

Post by IdefixUK » Thu Nov 08, 2018 5:13 pm

Collaborate wrote:
Thu Nov 08, 2018 4:11 pm


So if you give crap advice there is a regulator and an ombudsman to whom someone can complain? And you have indemnity insurance for any compensation you're liable to pay?
All posters on this site have a "get out of jail free card". it's written on the top of the page! But point taken. I wasn't having a go at anyone in particular.

Regards

TO
Posts: 709
Joined: Wed Dec 28, 2005 1:05 pm

Re: Fallen leaves and fruit

Post by TO » Thu Nov 08, 2018 9:05 pm

ukmicky wrote:
Thu Nov 08, 2018 12:54 am
Just in case someone questions the information in Clerk & Lindsell on Torts vs that in Charles mynor :The Law of Trees, Forests and Hedges,

Sweet and Maxwell the leading publishers of legal publication in the UK say

Clerk & Lindsell on Torts, part of our Common Law Library series, is one of our flagship titles. It is the definitive work and market leader in this area of law; it offers the most comprehensive coverage of the subject, providing the end user with indispensable access to current, frequent and unrivalled authoritative information on all aspects of tort law. An essential reference tool, Clerk & Lindsell is widely referred to by practitioners and cited by the judiciary.
Well the publisher would 'big it up' wouldn't they. Was their opinion of their product peer reviewed. Which British Standard or European Norm applies to the peer review of books which just state matters of fact, or to publishers opinions of their own products. Hardly independent, and unlikely to be peer reviewed.

Not a single thing mentioned in the quotes from Clerk and Lindsell appears to have any weight. None appears to form part of any judgement.

And whilst there may be 'little' guidance available, there is, in this case, relevant guidance provided by the courts. That is unless you are of the belief that there is a Statute of Limitations on precedence and statute or, you do not recognise the authority of the courts.

To compare Clerk and Lindsell with Mynors is to compare apples with pears. One is a general tome on common law, one a tome on the specific laws relating to trees forests and hedgerows. Which includes statues as well as common law.

I wonder who is the publisher, and what they would say about The Law of Trees Forests and Hedgerows. I have no doubt they'd be completley unbiased in promotion of their book, ensuring their blurb was peer reviewed to the highest non- existant standards.

Just in case someone questions the information in Clerk & Lindsell on Torts vs that in Charles mynor (sic) :The Law of Trees, Forests and Hedges,

Sweet and Maxwell the leading publishers of legal publication in the UK say 'The Law of Trees, Forests and Hedges provides the only detailed reference source on the large and disparate body of law relating to trees, forests and hedgerows – an uncoordinated mixture of private and public law, common law and statute'.

Oh, same publisher, same positive blurb. I'm gobsmacked. And it must have gone through the same non-existent thorough and independent British Standard or European Norm peer review process.
IdefixUK wrote:
Thu Nov 08, 2018 5:13 pm
All posters on this site have a "get out of jail free card". it's written on the top of the page! But point taken. I wasn't having a go at anyone in particular
Yes, but those seeking advice don't have a get out of jail card. 'Well me lud, I took the advice of someone who knows nothing, isnt qualufied and has no experience in these natters from a website. Oh, and by the way, I don't recognise your Courts authority'.

That's worth two weeks for contempt any day of the week.

Unfortunately what those seeking advice get from this website is, by and large, garbage.

Only the Courts can decide what is right or wrong. The starting point is Statute or precedence.

User avatar
thin and crispy
Posts: 895
Joined: Tue May 08, 2007 8:57 pm

Re: Fallen leaves and fruit

Post by thin and crispy » Thu Nov 08, 2018 10:10 pm

mr sheen wrote:
Thu Nov 08, 2018 10:18 am
A neighbour obsessively collects his apples......his neighbour obsessively seeks ways to hinder and stop him. A dispute between neighbours exists with both behaving or seeking to behave...badly. This matter can only escalate unless one side puts apples and leaves into perspective in relation to the real issues that most people face in life.

The options are still....ignore him and live with it; seek an injunction to stop him; or move.
You clearly haven't been paying attention to what I've said Mr Sheen.

The neighbour hasn't collected any of his apples; he has threatened to. The fruit has only minimal value, and it is he who deliberately deposits the apples on my land. That is one tactic amongst many that he has adopted in a ONE-SIDED, twenty-year programme of low-level harassment, and indeed occasional criminal activity. That is one of the 'real issues', as you put it, that I have faced in the last two decades of my life.

As for your three options:

* I do generally ignore him as much as possible (primarily because his actions are contrived to get attention): I have made that plain several times in this thread. Perhaps you have skipped over those parts.

* Even if a court would issue an injunction over a few rotten apples, it would only give him some perverse pleasure to see his actions have caused me the trouble and expense of going to court. Injunction or not, he won't be getting into my garden. With an injunction, however, he at least gets attention.

* Moving house is a rather extreme response to having an idiot for a neighbour; that just won't happen.

I would also add one more option available to me: that is to stand up to his harassment as far as the law allows - which was what motivated my original question. Rolling over (in this case allowing unfettered access to my garden to retrieve the apples that he himself put there) is only inviting him to step up the harassment.

I don't think many people (me included) would consider it wise to allow myself to become his victim. You seem to equate that position, with 'behaving or seeking to behave...badly'. Perhaps you would do me the courtesy of explaining why you think your accusation is justified.
Last edited by thin and crispy on Thu Nov 08, 2018 10:40 pm, edited 4 times in total.
Prejudice, not being founded on reason, cannot be removed by argument. Samuel Johnson.

User avatar
thin and crispy
Posts: 895
Joined: Tue May 08, 2007 8:57 pm

Re: Fallen leaves and fruit

Post by thin and crispy » Thu Nov 08, 2018 10:13 pm

arborlad wrote:
Thu Nov 08, 2018 11:21 am
Once threads descend into moving house and injunctions I think they've gone way off track, if this had been about two adjoining commercial orchards then I would expect 'Mynors' or a 15th Century precedent to be the relative law on the matter - but it's not, it's about two residential gardens where I would expect the man on the Clapham Omnibus to have more relevance.

If you wish to cultivate something that you place a high (fiscal?) value on, it would make sense if it were grown where only the owner could reach it and any fruit that falls is onto land that he owns.
I couldn't agree more arborlad.
Prejudice, not being founded on reason, cannot be removed by argument. Samuel Johnson.

ukmicky
Posts: 4972
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Fallen leaves and fruit

Post by ukmicky » Fri Nov 09, 2018 12:34 am

TO wrote:
Thu Nov 08, 2018 7:43 am
ukmicky wrote:
Thu Nov 08, 2018 1:37 am
You would not be in anyway way legally responsible for any harm that came to him if he hurt himself climbing over your fence .
ukmicky wrote:
Thu Nov 08, 2018 1:37 am
Advice given is not legally qualified and you are advised to gain a professional opinion
IdefixUK wrote:
Thu Nov 08, 2018 6:38 am
Occupiers' Liability Act 1984.
And the 1957 Act
Yes and the court will ask itself this question.

Is the risk one which an occupier may reasonably be expected to protect visitors from". White v Saint Albans council .

So Is the OP resonably expected to ensure that a fence is safe for someone to climb over .As a fence is not something that is meant to be climbed upon I think the answer. is obvious
Any information provided is not legal advice and you are advised to gain a professional opinion

ukmicky
Posts: 4972
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Fallen leaves and fruit

Post by ukmicky » Fri Nov 09, 2018 2:35 am

To compare Clerk and Lindsell with Mynors is to compare apples with pears. One is a general tome on common law, one a tome on the specific laws relating to trees forests and hedgerows. Which includes statues as well as common law.
Correct you cant compare them as one is a reference book on the law used by the judiciary , the courts and universities the other one is not. .
And whilst there may be 'little' guidance available, there is, in this case, relevant guidance provided by the courts. That is unless you are of the belief that there is a Statute of Limitations on precedence and statute or, you do not recognise the authority of the courts.
I would love to see you stand up in court and try to prove what I have underlined above. Saying it is one thing proving it is another

What you also don't seem to understand is not all court decisions create precedents , not all precedents last for ever and not all precedents are binding . The law evolves ,that's how the common law system works .


Also only certain courts can create precedents as some like county courts and magistrates are not of sufficient level . Of those that can create precedents other courts of the same level or higher are not bound by the precedent and can create there own precedent. Even precedents from the Appeal court are not totally binding as the supreme court formally the house of lords can ignore them .

Show me one thing that has legal standing which says the decision in Mitten vs frudrye created a legally binding precedent. Good luck with that.

Also you do realise cases from the 17th century very rarely created precedents as the common law system in those days was not just in its infancy it was embryonic. There are also very few actual case transcripts from those days and for any case to create a precedent a full transcript of the case is required.
Any information provided is not legal advice and you are advised to gain a professional opinion

Collaborate
Posts: 1822
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: Fallen leaves and fruit

Post by Collaborate » Fri Nov 09, 2018 7:38 am

ukmicky wrote:
Fri Nov 09, 2018 12:34 am
the court will ask itself this question.

Is the risk one which an occupier may reasonably be expected to protect visitors from". White v Saint Albans council .

So Is the OP resonably expected to ensure that a fence is safe for someone to climb over .As a fence is not something that is meant to be climbed upon I think the answer. is obvious
Anyone with an ounce of legal training who had researched this area of law would realise that you are hopelessly wrong. A roof is not meant to be walked over, yet a child who fell through a skylight in the Young v Kent County Council [2005] EWHC 1342 case was entitled to some compensation. Little wonder TO is scathing at the ill-informed advice spewed out on here at times.
Also only certain courts can create precedents as some like county courts and magistrates are not of sufficient level . Of those that can create precedents other courts of the same level or higher are not bound by the precedent and can create there own precedent. Even precedents from the Appeal court are not totally binding as the supreme court formally the house of lords can ignore them .
Again, a lack of understanding here. Lower court decisions are rarely, if ever, reported. Hight court and above usually. Unless of course you get your law reports from the Daily Mail.

TO
Posts: 709
Joined: Wed Dec 28, 2005 1:05 pm

Re: Fallen leaves and fruit

Post by TO » Fri Nov 09, 2018 9:26 am

ukmicky wrote:
Fri Nov 09, 2018 2:35 am
...you cant compare [Clerk and Lindsell] as one is a reference book on the law used by the judiciary , the courts and universities the other one is not.
.Factually incorrect. They are both reference books on the law, both are used in the Courts and therefore the judiciary, and both will be available to students at universities studying their relevant degrees, be it law, forestry or arboriculture.
ukmicky wrote:
Fri Nov 09, 2018 2:35 am
And whilst there may be 'little' guidance available, there is, in this case, relevant guidance provided by the courts. That is unless you are of the belief that there is a Statute of Limitations on precedence and statute or, you do not recognise the authority of the courts.
I would love to see you stand up in court and try to prove what I have underlined above. Saying it is one thing proving it is another
Easy enough. The referenced case exists, it was recorded, it's there in black and white. I don't deny it's existence. It's not for me to deny it, rather you would need to prove it's non-existance, rather than just saying it.

As for legal precedent, you clearly do not understand what it is. For the avoidance of doubt; In common law legal systems, a precedent or authority is a legal case that establishes a principle or rule. This principle or rule is then used by the court or other judicial bodies use when deciding later cases with similar issues or facts.
ukmicky wrote:
Fri Nov 09, 2018 2:35 am
Show me one thing that has legal standing which says the decision in Mitten vs frudrye created a legally binding precedent
Mitten v Frudrye

TO
Posts: 709
Joined: Wed Dec 28, 2005 1:05 pm

Re: Fallen leaves and fruit

Post by TO » Fri Nov 09, 2018 4:54 pm

Clearly I had nothing better to do this afternoon so I had a little look on t'internet for cases referencing Mitten v Faudrye. Well its like a rash all over the legal system of not only this country, but of the world. Well maybe not the whole world, but the civilised world, the world of our colonial cousins. Which is not surprising really. After all, the colonists, being civilised types from England, used the legal system they were familiar with in their old lives in their new worlds, the English system. Oddly though it appears in relation to matters other than just apples and in cases right up to the present.

It is also referenced in numerous books throughout the years, and in university literature, both here and in the colonies, even in that upstart colony the USA.

That it appears as often as it has should not be a surprise, it has been around for a while, and has clearly stood the test of time.

As for Mynors not being used in the Courts, you don't have to look far, a quick peruse of Court cases found reference to the book in the transcripts of cases, such as that of the Supreme Court judgement in the Perrin case.

Morgan Sweet
Posts: 278
Joined: Sat Jan 03, 2015 7:47 pm

Re: Fallen leaves and fruit

Post by Morgan Sweet » Fri Nov 09, 2018 6:46 pm

It therefore appears it is indeed the case that the neighbour can legally enter the OP's land to retrieve his fallen apples based upon "If a tree grow in an (sic) hedge, and the fruit fall into another man's land, the owner may fetch it in the other man's land." Perhaps the reference to the hedge may imply that it is relatively straight forward to cross a hedge to fetch the apples, my question is does that give the neighbour the right to remove the OP's secured wooded panel fencing acting as a barrier to his land to pick up his apples when and ever he chooses?

APC
Posts: 117
Joined: Sun Nov 24, 2013 5:37 pm
Number of Posts per Page: 20
Number of topics per page: 20

Re: Fallen leaves and fruit

Post by APC » Fri Nov 09, 2018 9:41 pm

How do you like them apples?? 😱

ukmicky
Posts: 4972
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Fallen leaves and fruit

Post by ukmicky » Fri Nov 09, 2018 11:46 pm

Mitten v Frudrye
There are a few entries dotted around where the name of the case is referenced but none go into detail and none of publications that reference the name provide a case summary . I can find countless numbers of cases that didn’t create binding precedents but the name of the case is still referenced all over the world.


The vast majority of cases do not create precedents even fewer create binding precedents. Show me something,anything that says that case created a binding precedent.
Again, a lack of understanding here. Lower court decisions are rarely, if ever, reported. Hight court and above usually. Unless of course you get your law reports from the Daily Mail
And I have no idea what your point is because lower courts do not create binding precedents .
Any information provided is not legal advice and you are advised to gain a professional opinion

ukmicky
Posts: 4972
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Fallen leaves and fruit

Post by ukmicky » Sat Nov 10, 2018 12:01 am

Anyone with an ounce of legal training who had researched this area of law would realise that you are hopelessly wrong. A roof is not meant to be walked over, yet a child who fell through a skylight in the Young v Kent County Council [2005] EWHC 1342 case was entitled to some compensation. Little wonder TO is scathing at the ill-informed advice spewed out on here at times.
ANd anyone with an ounce of sense would understand that walking on a roof is dangerous and therefore access to the roof should be restricted so a kid ,(which the law actually treats differently to an adult )would not be able gain access to it.

You also don’t seem to understand a normal garden fence is not a danger , it is not something which you need to provide warnings of . It’s not something you need to restrict access to , it is not something the law expects you to risk assess .The act of climbing on the fence is the danger not the fence and the law does not expect an occupier to protect someone from something that a reasonable person would not reasonably see as a danger.


Do you need to provide warnings that the roof of your house would be a danger , no because it’s not because a reasonable man would not expect someone without the required skill set to be climbing it. . The law also places a duty on a trespasser not to perform an act that a reasonable man would see as a danger.

Common law doctrine
Volenti non fit iniuria. A willing person, injury is not doneis
The doctrine states if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party .

A reasonable man knows fences are not meant to be climbed on . They know they are not designed to hold the weight of a person climbing over them and therefore may break and cause harm and therefore willingly place themselves in a position where harm might result if they do climb one.
Any information provided is not legal advice and you are advised to gain a professional opinion

ukmicky
Posts: 4972
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: Fallen leaves and fruit

Post by ukmicky » Sat Nov 10, 2018 1:15 am

Occupiers liability Act 1984
(6)No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person.
The test is subjective
Any information provided is not legal advice and you are advised to gain a professional opinion

Collaborate
Posts: 1822
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: Fallen leaves and fruit

Post by Collaborate » Sat Nov 10, 2018 6:52 am

Mitten v Faudrye was a 17th century case decided by Mr Justice Popham. Its reference is Mitten v Faudrye, 79 ER 1259 (1626). This is a law report. If you question whether this case, which is still referred to today, is a legal precedent, you should not be posting advice on a legal website. It’s basic stuff.

The Kent County Council case was decided 21 years after the 1984 Act. It is warped logic for you to consider someone claiming compensation for doing something obviously dangerous does not set a low bar for someone scaling a fence, which is not inherently dangerous unless the landowner makes it so.

There is at times an astounding level of ignorance displayed here.

Post Reply