Article from Snohomish County Bar News – MAY 2011
by Samuel K. Darling, Attorney at Genesis Law Firm
John, like many homeowners, strongly dislikes his neighbor’s gigantic encroaching tree. Branches jut out and envelop John’s yard in darkness. Sap and sharp twigs litter both sides of the boundary line. He asked his neighbor to trim the overhanging limbs, but the neighbor vehemently said “no.” Now John wants to know whether he can take matters into his own hands and trim the intruding branches regardless of his neighbor’s refusal.
Though conventional wisdom and persuasive authorities say he can; few, if any, primary legal authorities in Washington directly address the topic. The most relevant precedential legal authority in Washington appears to be Gostina v. Ryland, a ninety-year-old opinion that provides conflicting answers in its dicta. At one point, the Gostina Court states the plaintiffs “certainly” had the right to cut “the branches that overhung their premises at the line.” However, elsewhere in the decision, the Court cited with approval an English case that cautioned against self-help tree trimming. A quoted portion of the English case reads: “persons should not take the law into their own hands, but follow the advice of Lord Hale, and apply to a court of justice.”
Secondary legal authorities indicate courts from most of the United States favor self-help trimming of intruding branches. “The common judicial concern has been that neighbors should resolve their disputes among themselves, and that allowing judicially imposed remedies would result in clogging the courts.” It thus appears, trimming of invading branches is usually lawful in U.S. jurisdictions, unless the trimming kills the tree. Recently, in Maier v. Giske, Division I of Washington’s Court of Appeals recited an uncontested set of legal conclusions which were in harmony with the law from other U.S. jurisdictions. In Maier, plaintiffs “were entitled to cut back branches that overhung their property,” but the trimming became timber trespass when it effectively killed the tree.
The weight of these persuasive authorities suggests self-help trimming of encroaching limbs is lawful in Washington. But there is also good reason to hesitate before trimming. Washington’s law is not certain, and overzealous trimming could lead to a timber trespass suit for treble damages and attorneys’ fees.