Trees are a part of the land, they can add value and aesthetic charm to an otherwise generic property, but trees have a nasty habit of being a living thing that grows over time, and that can cause problems for a landowner. What is the legal stance when that neighbor’s irritating plum tree reaches over the fence-line and deposits its annual shipment of rotting plums in your yard? The answer gets a little complicated and region specific.
As a baseline, Oregon has three legal stances that grind against one another in the tree-branch-overhang realm:
ORS 105.810 provides that any person who willfully cuts down, girdles, or otherwise injures or carries off any tree, timber or shrub on the land of another person [or on the street or highway in front of any person’s house or on public land in the village] shall be charged with trespass and may be responsible for “treble [triple] the amount of damages claimed or assessed for the trespass.” In other words — kill their tree, pay the price three times.
The Oregon court understanding of tree overhang/undermine liability, as seen in Carvalho v. Wolfe, 207 Or. App. 175 (2006), that holds “tree roots or branches that intrude into or over neighboring lands may be either a trespass or a nuisance,” but only insofar as the intrusion was a result of intentional, negligent, reckless, or abnormally dangerous activity.
The common law stance that you have the right to prune branches and roots back to the property line [not the fence line, mind you, but the property line. If you have a fence that is not perfectly on the property line, this can create significant liability for the tree cutting party]. No notice is required at law before cutting back the encroaching branches, though giving notice is the downright neighborly thing to do. Note that this is a right to remove a nuisance from one’s property, it is not a right to take possession of the parts of the tree that overhang. As a result, you can’t plop the branches in your wood pile or take fruit off the neighbor’s overhanging branches for your own personal use without it being considered theft of sorts. There are unanswered questions about what a party can do with the waste results of the tree pruning though; for example, can you put the wasted fruit in a compost bin for later use in gardening? Can you chip the branches and use the wood chips to line your garden paths? In either case, the removed property of the neighbor’s tree is being converted to personal use, albeit through some sort of transmutation of form. Without clear answers on these questions, the safest option is to simply treat the branches and fruit as a waste product and have it removed from the property completely.
Taken together, this means that a person can cut back branches to the official property line in the deed, but if they cut too far or kill the tree through the act of pruning, significant damages can result. If a neighbor’s tree is allowed to overhang or overgrow into the person’s property and causes damage, the neighbor is likely not responsible for the injury unless it can be proven that they were otherwise doing something risky or negligent. Self-help pruning is risky and should generally only be done when the parties are absolutely crystal clear on the location of the property lines.
It’s further worth noting that local governments may have different, more onerous rules on tree pruning and removal. For example, the city of Portland requires a permit to prune back certain size branches or certain trees. A property owner should not just pick up a saw and go to town on the overhanging tree, because the action can result in fines, lawsuits, and can potentially result in paying for the cost of replacement anyways.