Written by attorney Angelo Felice Campano

Do not go out on a limb when cutting a neighbor’s overhanging tree branches.

Generally, in California, a landowner can cut branches of a neighbor’s tree if the branches overhang in his/her yard. But, the landowner cannot cut so much of the tree if it ends up damaging or destroying the neighbor’s tree. In a recent case, the Appellate Court added that the landowner who cuts down over hanging branches of a neighbor’s tree can also be responsible for damages if the tree trimming affects the aesthetic or functional value of the tree.

In Rony v. Costa, a defendant landowner wanted to clear some overhanging branches of a tree that were growing from a tree located on a neighbor’s yard. The case is not clear if the defendant landowner informed the neighbor that the branches would be cut down. Under the law, the defendant landowner generally has the right to cut overhanging branches. But, the landowner went too far, according to the Appellate Court, when the tree branch cutting harmed the aesthetic and functional value of the tree. The tree, itself, did not die nor was it damaged significantly. The tree owner, however, testified that the tree, before its branches were cut, provided shade and made her yard more attractive to the eye. That was the aesthetic value.

On appeal, the Appellate Court held that a tree owner can recover for the loss of a tree’s aesthetic value. In other words, the Appellate Court allowed the tree owner to recover for the emotional damage caused by the tree branch cutting. Aesthetic value is generally a subjective decision and often difficult to place a value on. In this case, the tree owner could not place a dollar figure on her emotional damage, but the Appellate Court held that she did not have to do so. A jury “was free to place any dollar amount on aesthetic harm, unless the amount was ‘ “…so grossly excessive as to shock the moral sense, and raise a reasonable presumption that the jury was under the influence of passion or prejudice." See Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-509 [15 Cal.Rptr. 161, 364 P.2d 337] [affirming award of hard-to-measure emotional distress damages]; See Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1011-1014 [283 Cal.Rptr. 644] [affirming awards for reputational and emotional harms].)

In California, trees are very well protected. Code of Civil Procedure 733 and Civil Code 3346 allow a tree owner to recover up to 3 times the cost of repairing the damaged tree. Under case law, according to the Appellate Court, the tree owner can recover for the damage caused to the aesthetic value of her tree. In addition, Code of Civil Procedure 1029.8 allows a tree owner to recover attorneys’ fees against the unlicensed person who actually caused the damage when a license is required to perform the work.

Not mentioned in the court opinion is whether the defendant landowner informed the tree owner that the overhanging branches were going to be cut. Although not required, it is recommended that the person about to cut branches or roots let the tree owner know in advance what is going to be done. Including the tree owner in on the plan could help keep the consequences of what happened here out of court. ( [email protected])

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