TNCR Brain Trust Question
-
@larry said in TNCR Brain Trust Question:
@klaus said in TNCR Brain Trust Question:
@larry said in TNCR Brain Trust Question:
If they ask you advice, which rarely happens.... they end up "proving" that they're already more informed than anyone else and don't need any advice.
There are some notable exceptions, such as KathyK and JF from WTF. I don't know if you ever got in touch with them; they are quite nice.
I dont have a problem with IT at all. I was not commenting on him personally, but on this discussion. So there was no need to throw those 2 useless sacks of meat into the fray.
I know; I merely wanted to point out by means of two examples that not all lawyers are like that. So you do know them?
-
@mik said in TNCR Brain Trust Question:
Adverse posession. It usually applies more to land than trees, and I doubt it would apply here since IT has only lived there a few years. But as Jon said, at least consult with an attorney.
Based on these concerns, I googled "tree trespass" "adverse possession" "prescriptive easement" "Pennsylvania.
A Pennsylvania court case in 2004 (Koresko v Farley) expressly adopt that a tree trespass creates no claim to adverse possession or easement rights. It is exactly what I had hoped would be resolved, which was left open in Jones v Wagner.
"Encroaching tree parts, by themselves, do not establish “open and notorious” use of the land. Neither roots below ground nor branches above ground fairly notify an owner of a claim for use at the surface. In the absence of additional circumstances, such as use of the ground for maintenance or collection of leaves or fruit, roots and branches alone do not alert an owner that his exclusive dominion of the ground is challenged. This conclusion is analogous to our Supreme Court's decision that the known presence of windows near a lot line does not create a prescriptive easement for light and air. Maioriello v. Arlotta, 364 Pa. 557, 73 A.2d 374 (1950). Indeed, such an easement cannot be created by prescription. Id.
Jones, upon which Neighbors rely, does not hold otherwise. The Court in Jones actually held that encroaching tree limbs are a trespass which a property owner may remove. Dictum in a footnote does not recognize an encroaching tree part prescriptive easement. Rather, the court concedes that no prior Pennsylvania case addresses the issue. In any event, the dictum is not precedential.
In Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (1985) the Court of Appeals of Kansas held an easement by prescription cannot be acquired by overhanging tree branches. Writing for the Court, Chief Judge Abbott noted that defendants could not make the tree safe because the work would have to be done in the plaintiffs airspace. Id. at 768. Defendants have no right to go on plaintiffs property to do that work for the same reasons plaintiffs have no right to go on defendants property to trim or cut down the tree. Id. The Court concluded with a statement so clear, simple and true as to convince us of its wisdom:
The result reached here will be distasteful to all who treasure trees. The philosophy of the law is simply that whenever neighbors cannot agree, the law will protect each owners rights insofar as that is possible. Any other result would cause landowners to seek self-help or to litigate each time a piece of vegetation starts to overhang their property for fear of losing the use or partial use of their property as the vegetation grows.
Id. We agree with the reasoning and holding in Pierce, and we expressly adopt it in Pennsylvania."
FYI, the original case is Jones v Wagner (1993) which you might appreciate. I enjoyed reading it, as it is a sort of crash course in legal reasoning for us lay people who are not professionally involved. The complexities, technical precision, and amount of research involved show why a lawyer is worth their wages.
This is all being bundled into my letter to our attorney, and we'll let him handle their attorney who can handle the neighbors.
Thanks to all in the TNCR-BT who responded with some very good insights, concerns, and advice!
-
-
@copper said in TNCR Brain Trust Question:
Do not sign a non-disclosure
We need updates
I guess you could sign a non-disclosure if we are included
They'd have to pay additional to buy my silence. A lot more.
-
You wrote: "It litters seasonally -- pollen in the spring, acorns in the fall, leaves in the winter -- occasionally drops large branches, and shades our south exposure so we can't install pV panels."
It's mystifying, isn't it, how some people can so blithely leap over unignorable facts to get right to the I-want-what-I-want phase? How can these points be treated so dismissively? You can almost picture a judge peering down over his glasses and saying, "Mr Plaintiff, how say you about these overwhelmingly obvious facts? In what universe do you consider that it is acceptable to permit your tree to deposit its debris in your neighbors' yard?"
I can't improve much on what has already been said here. Except: I would take great care selecting your lawyer. Devote however much time you need to finding the right party. Don't stint on conveying your irritation and outrage and longstanding endurance of this matter. Don't settle for a ho-hum business-as-usual-in-the-court-of-law guy. Your letter to us is a great one -- take along a copy and give it to him/her to read. Get a guy who you are confident shares your emotional as well as your empirical position.
Your neighbors sound entirely unreasonable. You might have some intellectual hoitytoits here: "We can do this because we're very smart and you're just ordinary."
Not that I think you're ordinary.
Sic the right guy on them and watch their surprise. I do not see how they can prevail.
Good luck. Let us know what happens.
a "forensic arborist" (roll eyes)
Agreed!
Success is measured by your discipline and inner peace. – Mike Ditka
-
Years ago I had neighbor with what is called a tree of heaven growing very close to the property line and to both our houses. These things are essentially tree weeds, not particularly attractive or sturdy; however, my neighbor liked it because green, nature, etc.
I mentioned to him that the tree was a danger to both our homes because of its carpy nature; however, his love of the green weed meant he didn't want to remove it. Since the limbs grew close to our house and gave access to squirrels to our attic, I then suggested that I needed to trim back those limbs that overhung our yard and were a danger to us. He assented.
Having gone to the Josef Mengele School of tree trimming, I cut every single branch that overhung our yard. The thing looked ridiculous afterward - essentially only branches facing North were saved.
He wasn't terribly happy but didn't make an issue of it.
A new person bought the house a couple of years later. I mentioned to her that if she didn't like that ugly weed growing on her property that I'd be happy to remove it for her. She was delighted - as was I. It was gone about 20 minutes post her assent.
-
We have a very large old oak near the property line. The neighbor’s house is a very short setback - maybe 6 feet. When we had the tree guys out we had them lop off everything the was hanging over her house or would be soon. She was very grateful as she was out of work at the time. That’s how neighbors should work.
“I am fond of pigs. Dogs look up to us. Cats look down on us. Pigs treat us as equals.” ~Winston S. Churchill
-
@mik said in TNCR Brain Trust Question:
We have a very large old oak near the property line. The neighbor’s house is a very short setback - maybe 6 feet. When we had the tree guys out we had them lop off everything the was hanging over her house or would be soon. She was very grateful as she was out of work at the time. That’s how neighbors should work.
Agreed. When we moved in, a number of trees in our backyard hang over the fence to our neighbors yard. One of my first conversations with them involved a comment that I'm happy to trim back anything that is bothering them.
-
@ivorythumper said in TNCR Brain Trust Question:
@copper said in TNCR Brain Trust Question:
Do not sign a non-disclosure
We need updates
I guess you could sign a non-disclosure if we are included
They'd have to pay additional to buy my silence. A lot more.
