Whose tree is it?

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This is an interesting case in which the applicant asked the court to declare that she is the sole owner of a maple tree, so that she can remove it without her neighbour’s consent.  In Hartley v. Cunningham et al. 2013 ONCA 759, the Court of Appeal affirmed the application judge’s decision that the tree belonged to both neighbours.  Section 10(2) of the Forestry Act provides that if the tree trunk is growing on the boundary line, then both neighbours share ownership of the tree. What is interesting is that this determination does not have to be measured at the ground level:

[3]         The application judge considered the evidence before him, including the evidence of the expert witnesses, and concluded that the word “trunk” should be given its ordinary dictionary meaning. It is that part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage. There are no words in the statute that limit the meaning to the “trunk” at ground level. He commented that the point at which the trunk emerges from the soil would be lead to arbitrariness because soil can be added to the base of the tree to change the point of emergence. On the basis of the evidence before him, the application judge concluded that the tree was a boundary tree and that the appellant and the respondents are co-owners.

[4]         We agree with the application judge’s interpretation of s. 10(2) of the Forestry Act and his conclusion dismissing the appellant’s application to be declared the sole owner of the tree.

 

Access the decision here: Hartley v. Cunningham

(These posts are intended to be general legal information only. For legal advice, please consult a lawyer.)

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