Private Prosecution by Neighbour over Boundary Tree - Tree By-law Conviction Upheld on Appeal

Disputes between neighbours about boundary trees are not uncommon; private prosecutions by neighbours against neighbours, especially concerning boundary trees, are uncommon.  In a recent decision, Justice Libman of the Ontario Court of Justice upheld a lower court conviction obtained on a private prosecution with respect to a violation of the Forestry Act, R.S.O. 1990, c. F-26.  One neighbour contended that the other neighbour cut down a shared Norway maple tree without consent, which is generally a requirement of Section 10(3) of the Forestry Act.  He brought forward a charge against his neighbour in the Provincial Offences Court.

Although there was a permit or Certificate of Exemption issued by the City of Toronto for the removal of the tree (granted on the basis of concerns that the tree posed a hazard), the permit made it clear that the determination of the ownership of the tree was the responsibility of the party applying for permit.  In other words, the permit itself did not relieve the applicant (the neighbour who wished to cut down the tree) of any responsibilities he might have at Common Law or through legislation like the Forestry Act.

And although there are cases in which a neighbour might remove a tree without the other neighbour's consent. such as a case where the tree is causing a nuisance or where the removal is needed urgently and consent cannot be obtained in a timely manner, Justice Libman found that this was not such a case.  Where it was already well known that the neighbours opposed the removal of the tree, the other neighbour, permit or not, could not simply go ahead and have the tree removed.  For these reasons, the appeal from the conviction was dismissed.

The penalty that had been imposed by the trial justice was a fine of $5,000. 

Read the appeal decision at:  Gross v. Scheuermann.

Read the trial decision at: R. (ex rel. Scheuermann) v. Gross.

Read the sentencing decision at: R. (ex rel. Scheuermann) v. Gross.

Who owns the tree that straddles the property line?

One neighbour contended that a Norway Maple Tree straddled the property line.  The other neighbour wanted to cut the tree down.  She applied to the Court for an order stating that she was the sole owner of the tree (and, therefore, could proceed to take it down).  The neighbours on the other side of the property line disputed the ownership issue in an effort to save the tree.

According to the Forestry Act, every tree whose trunk is growing on the boundary line between adjoining lands is the common property of the owners of the adjoining lands. 

The Applicant argued that the tree at ground level was only situated on her property.  The Respondents insisted that the situation at ground level didn't accurately reflect the true location of the tree; the level of the ground adjacent to the trunk is variable depending on how much fill is placed against the trunk.  Instead, they argued that the base of the tree must be measured at the point at which the trunk meets the roots of the tree.

The Superior Court of Justice ruled that, for the purposes of the boundary tree provision in the Forestry Act, "the meaning of a treek trunk growing on a boundary line [includes] the entire trunk from its point of growth away from its roots up to its top where it branches out to limbs and foliage."  The Court added, "In any event, it is not only the arbitrary point at which the trunk emerges from the soil that governs."

According to the legislation, "in circumstances where the trunk is growing on the boundary line, co-ownership follows, no matter who planted the tree."

Read the decision at: Hartley v. Cunningham et al.