On Tree-Root Damage

Regarding “Neighbor Must Prove Tree-Root Damage” (by Robert J. Bruss, Sept. 10), when branches of a tree overhang or its roots come on to property, the owner may do any of the following:

* apply to the court for an order imposing a mandatory injunction on the neighbor ordering him to remove the encroaching branches or roots;

* sue the neighbor for the damages caused by the encroaching branches or roots;

* without going on to the neighbor’s property, remove the branches and roots up to the property line.

For citation of cases, see, generally, Witkin, 4 Summary of California Law, 9th Edition, Real Property, 424, Page 607. Also see Crance v. Hems (1936) 17 Cal.App.2d 450, at Page 453: “It seems settled law that overhanging branches are a nuisance, and it must follow that invading roots are. The person intruded on by branches may cut them off; it must be true that one may cut off invading roots; it must be true that he who is injured by encroaching roots from his neighbor’s tree can recover damages sustained from them. The right of action seems clear.”

If roots from a neighbor’s trees are breaking up the driveway, the adjoining owner can sue for the estimated cost or can cut the roots back to the property line, replace the driveway and sue for the actual cost. The remedy, if the damages sought are limited to $5,000 or less, is to bring the action in Small Claims Court.

Photographs of the condition of the driveway before any repairs are made, as well as photographs of the tree, of the roots in the ground exposed and leading to the neighbor’s tree, of the roots after they are cut back to the property line and of the driveway after it is repaired are evidence of causation. Receipts and canceled checks can be used to prove damages.

Finally, a claim or counterclaim for malicious prosecution is not permitted, even if a small claims case is “frivolous.”

THOMAS KEISER

Arcadia

Keiser is an attorney.

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