The value of a tree extends beyond its branches and dives deeper than its roots. Shade on a hot summer afternoon, a barrier to unpleasant sights and sounds, prevention of ground erosion, wind protection, and some trees even produce edible fruit. Not to mention the environmental impact, intercepting airborne particles, reducing smog and the overall greenhouse gases in our atmosphere. Trees can also present problems: unwanted leaves, falling branches, lack of sunlight, and damage to underground utilities and foundations.
Recently I planted a some fruit producing shrubs/trees on my property. Although they are small now, I hope they grow big enough to bare edible fruit, and provide shade on hot summer days. Some of these trees are planted along my fence adjoining my neighbors’ properties. What happens when the tree starts to produce branches that extend above my neighbor’s property or roots under my neighbors land? What if the trunk of the tree widens enough to protrude the boundary line of my property? You may pine the answers in-tree-guing.
Illinois follows a general rule that a boundary line tree may be jointly owned by the adjoining landowners. Ridge v. Blaha, 166 Ill.App.3d 662 (Ill. App. 1988).
What is a boundary line tree?
The location of the trunk of the tree determines whether a tree is a boundary line tree, not the roots or branches. It is measured from the point at which the trunk emerges from the ground. It does not matter what percentage of the tree grows on one neighbor’s property versus the other, any portion of the trunk crossing the boundary line creates joint ownership of the tree. This means that ownership of a tree may change as the tree grows, if the trunk protrudes beyond the property line. One day the tree may be exclusively yours, and the next it may be jointly owned by you and your neighbor.
What is joint ownership of a boundary line tree?
It means that one owner can prevent the other (enjoin them) from removal of the tree, to a certain extent. It doesn’t matter who originally planted the tree, once the tree becomes a boundary line tree, it is the joint property of both land owners, and either can enjoin the other from removal. Although, if one neighbor is able to prove that the boundary line tree threatens imminent damage to their property, they may be able to have it removed.
What about the roots?
The extension of roots beyond the property line is not determinative. Illinois borrowed precedent from an 1836 Connecticut Supreme Court opinion, “[d]ue to practical considerations, the fact that a tree’s roots alone cross a boundary line is insufficient to create common ownership, even though the tree thereby derives part of its nourishment from both parcels. Ridge, 166 Ill. App. 3d 662 (citing Lyman v. Hale (1836), 11 Conn. 177, 183).
What about the branches?
In Lyman, the Conn. Supreme Court was addressing a dispute over whether an adjacent landowner committed trespass, when he gathered pears from a fruit tree branch that extended over his property. The Conn. Supreme Court o-pined that if the branches overhang a boundary line then the non-owner would be permitted to remove those branches, if deemed a nuisance. However, that same neighbor (non-owner) would not be permitted to convert those branches or the fruit on those branches to his own use. As a cautionary note, removal of branches that cause damage to the overall health of the tree may result in liability to the removing party.
Boundary line trees may give rise to neighborly dispute; it is important to know your rights before undertaking any action to remove a boundary line tree. In many cases it may be wise to conifer with your neighbors before attempting to remove a tree or branch that may give rise to a future dispute.
*Christian is an Illinois lawyer and focuses his practice on real estate and business law.
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