GOOD FENCES MAKE GOOD NEIGHBOURS – A SERIES ON NEIGHBOURHOOD DISPUTES

Join us as we follow the Hatfields and the McCoys through a number of neighbourhood disputes that any of us may be unfortunate enough to encounter.

Part 1:  Tree Trouble

 Allan Hatfield lives in Mississauga, Ontario, with his wife Ruth, and his two children, Ronald and Lisa. The Hatfield’s home is a lovely two story Victorian house. Their back yard has a lovely bean-shaped swimming pool and a gazebo. The pièce de résistance of the Hatfield’s back yard is the beautiful maple tree that sits at the northeastern corner of the Hatfield’s lot.

 The maple tree is about forty feet tall, with a large canopy. The canopy spills over onto the property that is directly adjacent to the east of the Hatfield’s property. This adjacent property was recently purchased by the McCoy family when its previous owner, Larry Wilson, passed away, leaving only his pet beagle, Milo behind.

 Milo was to be sent to live with a distant family member in Nova Scotia. Not one for lobster, when faced with prospect of moving to the Maritimes, Milo ran away.  He was last seen carousing with a gang of street dogs in downtown Milton, Ontario. From time to time Milo would return to the Hatfield’s looking for scraps of food. Allan would feed Milo leftovers from the night before and send Milo on his way.

 John McCoy has a family of five; his wife Sheila, and their sons Adam, Noah, and Owen. The McCoys moved in two weeks ago. Being the friendly neighbour that he is, Allan invited the McCoys over for a barbeque.  The barbeque was a big success, at least until it was time for dessert. Sheila McCoy had made a peach cobbler for dessert, which Allan’s son Ronald refused to finish because he thought it was “bland”. A heated exchange between the families ensued, which escalated into a food fight. After being hit with mashed potatoes, John McCoy erupted furiously, flipped over the entire picnic table, and stormed back to his house with his family.

 The next morning Allan woke to the sound of a chainsaw. He quickly shuffled over to his bedroom window to discover John McCoy standing on a large ladder, cutting the portion of the canopy of Allan’s maple tree which overhung the McCoy’s property.  “Outrageous”, shouted Allan, as he dashed outside to confront McCoy.

 “And just what do you think you’re doing McCoy!” shouted Allan. “Just pruning my half of our tree”, responded John. “That isn’t your tree, McCoy. It is growing on Hatfield property! Only a part of the canopy overhangs McCoy property! That doesn’t make the tree your property”, snarled Allan. “Oh, I’m afraid it does Allan, you see my lawyer friend told me about a court decision last year, which said that if a tree overhangs your property you become a joint owner of the tree, and you can do whatever you want to it.”

“That’s ridiculous, I’m calling the cops!”

 Suddenly a voice boomed over the bickering neighbours, “you’re both wrong!”  It was Mr. Van Sickle, Hatfield and McCoy’s neighbour to the north of their properties. In addition to being a gardening enthusiast, Mr. Van Sickle was also a lawyer. “I have actually read the court decision to which you are referring John, and it does not stand for the principle that if a tree’s canopy overhangs your property you automatically become a joint owner of that tree. The case to which you are referring is the case of Hartley v Cunningham, and that case had to do with a tree whose trunk had grown across a property boundary, not just the canopy, as is the case here.

 “See”, quipped Allan Hatfield, “you have no right to touch my tree’s canopy, even if it grows over onto your property!”

 “Not so fast”, said Mr. Van Sickle.  ”Just because Mr. McCoy doesn’t have any property rights over your tree, doesn’t mean he has to let your tree encroach onto his property.”

 “Exactly”, said John McCoy. “Your tree is a nuisance, so I have the right to cut away all of the branches that come on my property, and I can even cut down your tree if I wanted to, because it will continue to be a nuisance!”

 “Hold on, Mr. McCoy”, warned Mr. Van Sickle. “The common law permits you to trim the tree up to border of your property line, but no further. If you go past your property line you will be trespassing onto Mr. Hatfield’s property. Also, you should always consult the municipal by-laws before pruning someone else’s tree, just in case there are any unforeseen restrictions imposed by the municipality.” 

 “Well, I don’t like this one bit”, bemoaned Mr. Hatfield.

 “Neither do I”, said, Mr. McCoy, as he walked back to his house in a huff.

 Suddenly, Milo, the late Mr. Wilson’s dog, came out of nowhere and bit Mr. McCoy in the leg.

 “Ouch!”, screamed John McCoy. “Hatfield, your stupid dog just bit me. I’ll see you in court!”

 The law left both Mr. McCoy and Mr. Hatfield unhappy, as Mr. McCoy is allowed only to trim the problematic canopy and not destroy it in its entirety as he had hoped to do, and Mr. Hatfield prize maple would be cut back. 

 Dennis Van Sickle is a member of Keyser Mason Ball, LLP’s Commercial Litigation Group, please contact Dennis at dvansickle@kmblaw.com or (905) 276-0413 for more information on neighbourhood disputes or any other litigation matter