Question: I have a neighbour whose trees are immediately adjoining on to my property. They are in a dangerous condition, in that some of them are very old and are, in my opinion ready to fall. If they do, they will cause substantial damage to my property, not to mention the personal injury that could happen. I have approached him about this, but to date, he has ignored my requests to maintain them. What are my legal rights here?

Answer: Where a landowner has a tree or trees on his lands which adjoin the public road or as in your case a neighbour’s property, he is bound to take such care as a reasonable and prudent landowner would take to guard against the danger of a falling tree causing damage. Failure on his part to exercise this degree of care, and as a result of his failure, damage occurs, a cause of action may arise against him.

This general principle was acknowledged by Mr. Justice O’Hanlon in the 1990 case of Frank Lynch-v-Liam Hetherton. Briefly, the facts of the case were as follows:

Frank Lynch was driving along a country road at Kilrush, Co. Clare, when a tree growing in Liam Hetherton’s land at a point immediately adjoining the road broke off suddenly at the base of the tree and fell across the road. The car was extensively damaged, but Frank Lynch and his passengers, fortunately suffered no personal injury.

A claim was brought by Lynch seeking Damages. The Circuit Court Judge found in favour of Lynch. Liam Hetherton appealed the case to the High Court. On the day, Hetherton said, when the tree fell it was not a day of high winds. Hetherton told the court the tree was located on an outfarm which he used for grazing and which he would pass five days a week. There was he said, a row of wire on the ditch adjoining the road which was connected to the tree.

He told the court,that ten days before the accident happened, he had tightened it with staples at a point 2 feet above ground level. The tree at that point he said was sound and firm. There was he said, nothing unusual about it. The tree was not rotten on the outside. It was sound on the outside. Judge O’Hanlon held that the tree had been caused to fall by some inherent defect in the condition of the tree.

It was acknowledged, that the tree itself was in a decayed stage but the decay itself was not readily apparent. The Judge held that for Lynch to succeed in an action for damages arising out of an incident of this kind, he would (a)have to establish as a matter of probability that the landowner was aware, or should have been aware of the dangerous condition of the tree that was ultimately caused to fall or (b)in the absence of positive evidence about the state of knowledge of the landowner, it would suffice if he could show that proper inspection of the tree at reasonable intervals would have forewarned the owners that it was getting into a dangerous condition and that the danger should be averted by lopping or felling the tree, or by some other suitable means.

In the circumstances, the Judge held that in this particular case, the owner of the tree, namely Lynch had exercised a degree of care that would be exercised by a reasonable and prudent landowner. Even if an expert had been employed by Lynch, the Judge held, the evidence in this case did not show as a matter of probability that the internal decay of the tree would have been immediately apparent to the expert.
CONCLUSION

The question to be asked is does the adjoining neighbour know or ought to know that the trees are in a dangerous state? A proper inspection of the trees would look for signs of decay in the timber.

Clearly, your neighbour has a duty of care towards you. You have voiced your concerns to the neighbour. If your concerns are ongoing and if you believe that there is a genuine ongoing concern then you should perhaps consider putting your concerns in writing to him advising him of his obligations and duties towards you as the owner of adjoining property and take what steps as are necessary to compel him to maintain his trees in a proper and safe manner.

Published: West Cork People April 2010