United Kingdom House of Lords Decisions

LORD HERSCHELL L.C. :-

My Lords, the question raised by this appeal is whether, where branches of trees overhang the soil of another person, the person whose soil they overhang is entitled to remove those branches without notice to his neighbour on whose side of the boundary the trees grow. It is not disputed that if such notice be given, and if the neighbour do not remove the boughs, the person whose land they overhang would be entitled to do so, subject to the questions raised on the Prescription Act and the Statute of Limitations, which I will deal with in a moment. This of course involves an admission that against the will of the owner of the land the neighbour cannot insist that the boughs of his trees shall remain there, the only question being whether he is entitled to notice so that he may remove the boughs himself, or whether the person complaining of them may remove them. As regards the right, the difference does not seem to me to be one of extreme importance. In the present case, I think it is extremely probable that if notice had been given the plaintiff would not have removed the boughs, and that the defendant would have removed them after all. Nevertheless, if in point of law the person complaining of them can only remove them after notice, then the plaintiff in this action would be entitled to recover.

My Lords, it might be a reasonable provision of the law that such notice should be required, but whether it would be any great protection to the owners of trees near the boundary of their neighbour's land may be doubted. It might be very reasonable that there should be some law regulating the rights of neighbours in respect of trees, which, if planted near the boundary, necessarily tend to overhang the soil of a neighbour. It may be, and probably is, generally a very unneighbourly act to cut down the branches of overhanging trees unless they are really doing some substantial harm. The case is a very common one; such trees constantly do overhang, and it certainly might call for the intervention of the Legislature if it became at all a common practice for neighbours to exercise what may be their legal rights in thus cutting off what would frequently be a considerable portion of the trees which grow on the other side of their boundary.

But, my Lords, the question is whether there is any authority for the proposition that notice must be given by the owner of the land before thus removing the encroaching boughs. In support of the proposition that notice is requisite, not a single authority has been cited. Now it is certain that the boughs of trees have thus encroached, and that those whose land they have overhung have removed them, on many occasions. Actions in respect of such removal have occurred from time to time, the point at issue generally being whether the soil over which the branches were spread was the soil of the one person or the other; but I never heard it suggested in any of those cases (and certainly I can remember more than one within my own experience) that notice to the adjoining owner was requisite before the boughs could be removed.

Now, my Lords, what are the only authorities to which appeal has been made? They are cases where a nuisance has existed on neighbouring soil, where the person complaining of the nuisance could only get rid of it by going on to the soil of his neighbour; and there no doubt it has been held that he cannot justify going on to the soil of his neighbour to remove the nuisance except in a case of emergency, unless he has first given his neighbour notice to remove it. That is because his act involves an interference with his neighbour's soil - involves a trespass. But those cases of course are quite distinguishable from the present case where the act does not involve a trespass, but what is complained of is an encroachment on the soil of the man who removes the boughs, and what he does in getting rid of the encroachment is done on his own land, and therefore primâ facie needs no excuse so far as the place where he is doing the act is concerned. The present case, therefore, seems entirely distinguishable from those; and the question whether there are any cases in which such a notice may be necessary does not arise here. The question is whether such a notice is necessary prior to the removal of boughs overhanging a man's own land.

My Lords, the only dictum that can be found on the subject is a dictum of Best J. in the case of Earl of Lonsdale v. Nelson⁽¹⁾,a case which is not in point, inasmuch as there the Court had to determine whether the defendant could do acts upon his neighbour's land which involved considerable interference with his rights of property. Best J. says: "Nuisances by an act of commission are committed in defiance of those whom such nuisances injure, and the injured party may abate them without

(1)     2 B. & C. at p. 311.


notice to the person who committed them, but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees which overhang a public road or the private property of the person who cuts them." There is, then, that dictum of Best J. on the point, but what seems to me more important is that there is not only no decision but no dictum whatever to be found to the contrary, and if we decided in favour of the plaintiff's claim we should not be interpreting the law, we should be making the law, and making it, not by the application of old principles to meet a new case, but by laying down conditions and limitations for the exercise of rights in a class of cases which has existed as long as the growth of trees and boundaries between neighbours have existed. It seems to me to be a case in which it is out of the question that we should lay down any proposition except that which, so far as we can find, has been regarded as the law in times gone by. I think, therefore, there is no warrant for saying that notice was requisite.

Then, my Lords, as regards the question whether the plaintiff has acquired any right by reason of the length of time these trees have overhung his neighbour's soil, I think it is impossible to say that he has either acquired a right to the land over which they hang or to their overhanging, under the Statute of Limitations. The trees, of course, grow from time to time, and their state each year is different from what it was the year before. The same remark applies to the suggestion that a prescriptive right has been obtained. The tree of to-day is not in the condition in which it was twenty years ago. It would be idle to suggest that the right gained at any time was the right to have the tree there in the condition in which it was twenty years before, and that it was only open to the adjoining owner to put back the tree into the condition in which it then was. The removal of what had grown in the meantime would, of course, be almost always, if not always, completely destructive of the tree. It seems to me impossible to say, in a case of this description, that a right is gained either by the Statute of Limitations or under the ordinary law of prescription. Those points indeed were very faintly urged (and one can quite understand why) by the learned counsel for the appellant. They rested their appeal mainly on the allegation that the appellant was entitled to notice before the defendant did the acts complained of, and I think they have not established the proposition for which they contended.

Then, my Lords, it was said there had been some small trespass. The learned judge who tried the case said he did not think that was of importance; and it is obvious that this action was not brought on that account, - it was brought to try the question of right between the parties. Your Lordships would not enter on an inquiry of that description now. It would make no difference whatever as to the costs of the action, because that was not the substantial question to be tried, and it is not suggested for a moment that there were any damages that could be more than nominal. Under these circumstances, I move your Lordships that the judgment appealed from be affirmed, and the appeal dismissed with costs.

LORD MACNAGHTEN :-

My Lords, I am of the same opinion. I think it is clear that a man is not bound to permit a neighbour's tree to overhang the surface of his land, however long the space above may have been interfered with by the growth of the tree. Nor can it, I think, be doubted that if he can get rid of the interference or encroachment without committing a trespass or entering upon the land of his neighbour he may do so whenever he pleases, and that no notice or previous communication is required by law. That, I think, is the good sense of the matter; and there is certainly no authority or dictum to the contrary. Whether the same rule would necessarily apply to the case of trees so young that the owner might remove them intact if he chose to lift them, or to the case of shrubs capable of being transplanted, may perhaps be worthy of consideration. That, however, is not the case here. It is admitted that the trees here are of great age, and the only possible remedy was by cutting or lopping the offending branches.

I am, therefore, of opinion that Mr. Webb has not exceeded his legal right, and that the appeal must be dismissed.

LORD DAVEY :-

My Lords, in this case the only question which is submitted to your Lordships, is whether the defendant (the respondent in the present appeal) was within his rights in taking upon himself to cut the branches of certain trees so far as they overhung the land of the appellant, or whether, before taking that step, he ought to have given notice to the appellant of what he proposed to do. Now, your Lordships are asked, in a question affecting real property, to lay down a proposition which, so far as I can see, has no authority in support of it; indeed the authorities, so far as they go, seem to me to be opposed to any such idea. It is true that where a person desires to abate a nuisance, which can only be abated by going on the land of the person from whom the nuisance proceeds, he must usually give notice of his intention to do so. That seems to me to be reasonable, because his act of going upon his neighbour's land is primâ facie a trespass, and I can understand that he should be bound to give notice of his intention to do that which would be primâ facie a trespass before doing it. But in the cases of which the present is an example, where a man proposes to abate a nuisance exclusively by doing acts upon his own land without going upon the land of his neighbour from whom the nuisance proceeds, the same reasoning does not seem to me to apply.

Now, my Lords, the appellant's counsel very fairly admit that they have no authority directly in point; but they base an argument upon Earl of Lonsdale v. Nelson⁽¹⁾. They say that Best J. there lays it down that cutting the trees which overhang your land is an exception from the general rule that nuisances of omission cannot be abated without notice to the person from whom they proceed. Well, my Lords, stopping there, if we are to adopt Best J.'s judgment as stating the law, it is really an authority against the appellant. But the learned counsel for the appellant went on to say that there is no authority except the dictum of Best J. (which is not binding as an authority upon your Lordships' House) for the exception. It was naturally asked what was the authority for the rule from which this is supposed to be an exception, and I confess that

(1)     2 B. & C. at p. 311.


notwithstanding the evident industry which the learned counsel for the appellant had bestowed upon the case they have not satisfied my mind that there is any authority for stating as a general proposition the rule from which Best J. is supposed to have treated the case of trees as an exception. Whether that general rule exists or not it is not necessary to say. But Earl of Lonsdale v. Nelson⁽¹⁾, so far as it goes, is an authority against the appellant, because, if the rule exists, then we have the authority of Lord Wynford for saying that the case of trees is an exception from it.

My Lords, the dictum of Croke J.⁽²⁾ seems to me to be against the appellant. "Si les rames de vestre arber excresce en mon terre, jeo poio eux succider, mes jeo ne poio justefier le succider de eux devant ils excresce en mon terre pur timor del'excrescer;" that is to say, If the boughs of your tree encroach upon my land I may cut them. He says not a word about notice; therefore, so far as that goes, it is an authority against the appellant.

Then, my Lords, it appears to me that the case of Pickering v. Rudd⁽³⁾ is also an authority against the appellant. In that case the defendant managed by an arrangement of poles and scaffolding and ropes to cut away so much of a Virginian creeper planted on the plaintiff's land as encroached upon his land. There was no allegation that notice had been given, and no point was made either way of notice having been given or not having been given. So far as that case goes it is an authority against the appellant, because it was held there by the Court that the defendant was justified in cutting away so much of the Virginian creeper as encroached upon his land; and although, no doubt, every point was taken in that case that could be taken, nothing was said about the necessity for any notice beforehand.

Penruddock's Case⁽⁴⁾ does not seem to me to assist the appellant at all, because the point which was decided in that case was whether a writ of quod permittat prosternere would lie against the alienee of the person who had levied the nuisance, and the report says this: "It was moved in the King's Bench, If the feoffee might abate the nuisance as the feoffor himself,

(1)     2 B. & C. at p. 311.
(2)     1 Roll. 394.
(3)     1 Stark. 56; 4 Camp. 219.
(4)     5 Rep. 100 b.


and as well in the hands of the feoffee who did not the nuisance as in the hands of the tort-fesor himself; and if the feoffee of the house to which the nuisance was made might do it (if he could do it) before he had some special prejudice, as in the dropping of the water, or if he ought to stay till he had special prejudice. And Popham C.J. held that in both cases the feoffee might abate the nuisance, and that before any prejudice, for it is reasonable that he should prevent his prejudice, and not stay till it be done; which was granted by the whole Court." It is quite true that it was held that in that case the writ quod permittat prosternere would not lie against the feoffee of the person who levied the nuisance without notice to him; but from the facts of that case it is perfectly obvious that what had to be done in order to abate the nuisance, which would involve the removal of a portion of the defendant's house, could only be done by going on the land. Therefore I do not think that Penruddock's Case⁽¹⁾ affords any authority to the learned counsel for the appellant for the proposition which they have submitted to your Lordships' House.

My Lords, I think it sufficient therefore to say that no authority has been cited to this House for the appellant's proposition, and the authorities, so far as they go, are rather against it than in favour of it; and when we come to look at the reason of the thing I entirely agree with what has fallen from my noble and learned friend on the woolsack that there is no such obvious consideration of justice as would induce this House to lay down for the first time the proposition contended for by the appellant.

(1)     5 Rep. 100 b.


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