The Rural Voice, 2019-08, Page 77 A review of the many boundary
tree cases that have been litigated in
Ontario courts would indicate that
boundary trees do not make good
neighbours; rather they are often a
source of conflict.
The Forestry Act provides that
“every tree whose trunk is growing on
the boundary between adjoining lands
is the common property of the owners
of the adjoining lands.” It is an
offence under the Act to injure or
destroy a tree growing on the
boundary between properties without
the consent of the owners of the
properties. Yet, the common law of
nuisance provides that property
owners are entitled to resort to self-
help remedies to eliminate a
continuing nuisance caused by roots
and branches from trees. Owners may
also seek an order from the Court that
the nuisance be abated or removed.
Some cases end up in Court because
one neighbour seeks advance approval
from the Court to eliminate the
nuisance; other cases end up in Court
because the neighbour has already
pushed ahead with a self-help remedy,
rightly or wrongly.
Earlier this year, Justice E.M.
Morgan heard an application by
property owners in a Toronto
neighbourhood seeking advance
permission to remove a boundary tree
that they alleged to constitute a
nuisance. The tree in question was a
mature and healthy maple of over
one metre in diameter at the trunk,
estimated to be between 50 and 60
years old. Two-thirds of the trunk was
located on the Applicants’ property,
Good fences
may make good
neighbours,
but what about
boundary trees?
John D. Goudy
is a partner in
Scott Petrie
LLP Law Firm,
and also farms
north of
London.
Agrilaw
74 The Rural Voice