Rights of Adjoining Property Owners: Overhanging Tree Branches and Encroaching Tree Roots

Posted in Real Estate

Adjoining property owners frequently encounter overhanging branches from a neighbor’s tree, hedge or other vegetation.  Although the base of a tree may be in your neighbor’s yard, when branches, limbs or roots cross over the boundary line, they may constitute a nuisance.

    Through two New Jersey Supreme Court cases, our Supreme Court recognized that encroaching branches may constitute an actionable nuisance and that a common law right exists to cut off overhanging branches to the property line, but no further. 

    In Ackerman v. Ellis, 81 N.J.L. 1, 79 A. 883 (Sup. Ct. 1911) the New Jersey Supreme Court held that tree branches which overhang the premises of another may constitute a nuisance. In such instances, the person over whose land they spread is entitled to an action for damages against the person responsible for their presence there.

    In Wegener v. Sugerman, 104 N.J.L. 26, 138 A. 699 (Sup. Ct. 1927) the New Jersey Supreme Court held that a landowner may lawfully cut overhanging branches of trees or hedges, but may not destroy the tree or hedge on the neighbor’s land.  This form of self-help was found to be acceptable to the Court.

    The New Jersey Appellate Division addressed damage caused by tree roots to a neighboring property owner’s wall in D’Andrea v. Guglietta, 208 N.J. Super. 31, 504 A.2d. 1196 (App. Div. 1986).  That case held that damages were properly awardable in the absence of proof that the wall owners were aware of tree roots in the vicinity of their wall before it was damaged.  The encroachment, this time by tree roots, was recognized as a nuisance.  However, this Court distinguished between tree branches and tree roots, which are largely underground, evident only upon digging down, their extent and girth uncertain and unpredictable, they are not commonly pruned or otherwise tended and their severance may endanger the tree’s stability in high winds and rainstorms.  208 N.J. Super. at 34.  The Court found that the “relatively uncomplicated law governing invasion of adjoining property by tree branches may not be fairly applicable under all circumstances to tree roots”.  208 N.J. Super. at 35.  The Court held that injury to an adjoining property caused by the roots of a planted tree was actionable as a nuisance and damages were recoverable, in the absence of any pleading or proof that the damages were avoidable or that complaining party had “come to the nuisance.”  208 N.J. Super. at 36.  In D’Andrea, when the adjoining property owners installed their wall, they saw no evidence of the neighbor’s trees roots in the vicinity of their wall, nor was there proof before the Court that they could have foreseen the direction and extent of the tree roots’ growth.  It should be noted however, that the D’Andrea case did not involve self-help, but only a claim for damages.