Kerala High Court
Smt. Manikkam vs Smt. Kamala on 14 February, 1986
Equivalent citations: AIR1987KER72, AIR 1987 KERALA 72, (1986) KER LT 536
JUDGMENT V. Bhaskaran Nambiar, J.
1. When branches of trees overhang the neighbouring soil, can any right accrue, over the land over which they hang, or, to the overhanging itself, by reason of the length of time these branches having been hanging over that land ? This is the short question that arises for consideration in this appeal by the defendants.
2. The plaintiff and the defendant, two women, owners of adjoining lands, unfortunately do not see eye to eye with each other. Admittedly, the branches of the trees standing on the defendant's land are spreading and jutting out above the property owned by the plaintiff. The plaintiff filed the suit complaining that the branches of these trees extending over her land caused nuisance preventing her from constructing any building or using the water in her well.
3. The trial Court found that these branches have been overhanging for about 50 years and that the neighbouring landowner has no right by way of easement to allow the trees in her property to overhang the property of the adjoining landowner. Even then, it did not give a decree in favour of the plaintiff holding that the claim was vague in the sense that the plaintiff did not describe where exactly the branches of the defendant's trees were overhanging on the plaintiff's property.
4. The plaintiff appealed. The Court below also found that the trees overhang the plaintiff's land and concluded that it caused regular and permanent nuisance, to the plaintiff. The defendant was, therefore, directed by a mandatory injunction to cut and remove the branches of the trees existing in her property and which overhang the plaintiff's property within a period of one month. The defendant now appeals.
5. The counsel for the appellant contended that the trees having been in existence and the branches having projected to the neighbouring land for over 50 years, the plaintiff is not entitled to any injunction. In support of this contention he also relied on a decision of this court in Abdul Karim v. Aliyaru Kunju, 1962 Ker LT 407.
6. The law on the question of the right of the owner of the land in respect of branches of trees overhanging over his soil is practically settled after the leading judgment of the House of Lords in Lemmon v. Webb, (1895) AC 1.
7. A right to property protects the owner from any infringement of that right unless it is sanctioned by law. No man has thus a right to allow the branches of the trees in his land to overhang his neighbour's property. The overhanging affects the neighbour's land and curtails the reasonable user of that land. It is a continuing wrong in tort a nuisance, as long as the overhanging persists. This nuisance can be abated by the owner lopping the branches which extend over his land. If he does not exercise that right, he can very well approcah a court to obtain the necessary relief for abating the nuisance. He can issue notice to the owner of the neighbouring land to cut and remove those offending branches. No right can arise by prescription to continue a nuisance. The overhanging of a branch of a tree does not constitute an occupation of the neighbouring land and does not create a right. No such right accrues by mere lapse of time. The branches that exists now may not be the same branches that were in existence 20 years back; nor will they be in the same condition. The removal of those branches which had grown in the meantime thus does not affect any right. The owner of the tree acquired no right over the land of the neighbour simply because the branches of his trees extended over the neighbouring soil for any continuous length of time. The law does not countenance a prescriptive right to commit and continue a nuisance.
8. I shall refer to some of the important decisions which deal with these aspects. In Lemmon v. Webb, (1895) AC 1 it was stated thus : --
"On the appellant's land near the boundary were several large old trees, branches of which overhung the respondent's land, and had gone so far much more than twenty years. The respondent without giving notice to the appellant and without trespassing on his land cut off a number of branches to the boundary line. The appellant brought an action against the respondent claiming: first, a declaration that the respondent was not entitled to cut any overhanging branches when the overhanging had continued many years and that he was only entitled to cut recent growth, and further or in the alternative that he was not entitled to enter upon the appellant's land for the purpose of cutting overhanging branches, either absolutely or at all events not until after due notice to the appellant; secondly, an injunction to restrain the respondent from cutting contrary to the above declaration; thirdly, damages for trespass and wrongful cutting.
Kekewich J. held that the respondent was not entitled to cut the branches without notice to the appellant and gave judgment for the appellant for 5 damages. The Court of Appeal (Lindley, Lopes and Kay L. JJ.) reversed that decision and dismissed the action (1)."
9. On appeal to the House of Lords, Lord Herschell L.C. observed thus : --
"Then, my Lords, as regards the question whether the plaintiff has acquired any right by reason of the length of lime these trees have overhung his neighbour's soil, I think it is impossible to say that he has either acquired a right to the land over which they hang or to their overhanging, under the Statute of Limitations. The trees, of course, grow from time to time, and their state each year is different from what it was the year before. The same remark applies to the suggestion that a prescriptive right has been obtained. The tree of to-day is not in the condition in which it was twenty years ago. It would be idle to suggest that the right gained at any time was the right to have the tree there in the condition in which it was twenty years before, and that it was only open to the adjoining owner to put back the tree into the condition in which it then was. The removal of what had grown in the meantime would, of course, be almost always, if not always, completely destructive of the tree. It seems to me possible to say, in a case of this description, that a right is gained either by the Statute of Limitations or under the ordinary law of prescription".
10. Lord Macnaghten stated thus :--
"My Lords, I am of the same opinion. I think it is clear that a man is not bound to permit a neighbour's tree to overhang the surface of his land, however long the space above may have been interfered with by the growth of the tree. Nor can it, I think, be doubted that if he can get rid of the interference or encroachment without committed a trespass or entering upon the land of his neighbour he may do so whenever he pleased, and that no notice or previous communication is required by law. That, I think is the good sense of the matter; and there is certainly no authority or dictum to the contrary. Whether the same rule would necessarily apply to the case of trees so young that the owner might remove them intact if he chose to lift them, or to the case of shrubs capable of being transplanted, may perhaps be worthy of consideration. That, however, is not the case here. It is admitted that the trees here are of great age, and the only possible remedy was by cutting or lopping the offending branches."
11. In Smith v. Giddy, (1904) 2 KB 448, Kennedy, J. observed thus : --
"If trees although projecting over the boundary are not in fact doing any damage, it may be that the plaintiffs only right is to cut back the overhanging portions; but where they are actually doing damage. I think there must be a right of action. In such a case I do not think that the owner of the offending trees can compel the plaintiff to seek his remedy in cutting them".
12. In Butler v. Standard Telephones and Cables, Limited, McCarthy v." Same, (1940) 1 KB 309, it was held thus :--
"There are many cases of actions brought in respect of damage caused by overhanging branches, but it would seem that the only instance of an action for damage caused by the roots of a tree is in Irish case, Middleton v. Humphries, (1913-47 ILT 160). There the plaintiff alleged that his wall had collapsed owing to the action of the roots of a tree on the defendants' land which had burrowed under it. Ross J. had no doubt that that gave a cause of action just as though the wall had been damaged by the overhanging branch of a tree on the defendants' land, and he granted an injunction restraining the defendant from continuing the permit the injury and awarded damages. That decision which I think is perfectly right -- draws no distinction either in law or in fact between damage caused by overhanging branches and damage caused by roots which burrow under the ground. The author of Gale on Easements, 11th ed., p. 438, takes the same view, and that passage has been cited with approval.
It seems to me that not only is there a right for a plaintiff whose property has suffered from the roots of a tree belonging to his neighbour to cut the roots of the offending tree, but he is also entitled to recover damages if damage has been suffered by him owing to the action of the roots.
Of the cases which Mr. Manningham --Buller cited to me I need only refer to Smith v. Giddy, (1904-2 KB 448), and particularly to the judgment of Kennedy J. : Crowhurst v. Amersham Burial Board, (1878-48 LJQB 109) and Lemmon v. Webb, (1895 AC 1). In the last named case Kay LJ. summed up the authorities on this part of the law in these words "The result of the authorite seems to be "this : -- The encroachment of the boughs and roots over and "within the land of the adjoining owner is not a trespass or "occupation of that land which by lapse of time could become "a right. It is a nuisance. For any damage occasioned by "this an action on the case would lie. Also, the person whose "land is so affected may abate the nuisance if the owner of "the tree after notice neglects to do so."
13. In Davey v. Harrow Corporation, (1958) 1 QB 60 Lord Goddard, C.J., observed thus : --
".......where a tree encroaches on a neighbour's land, whether by overhanging branches or by the penetration of roots, the adjoining owner can abate the nuisance by lopping the branches or grubbing up the roots. That the encroachment is not regarded as trespass, but as a nuisance, is well settled".
14. The Madras High Court in the decision reported in Batcha Rowther v. Alagappan Servai, AIR 1959 Mad 12, held thus :--
"The owner of a tree has no right to allow its branches to overhang the land of his neighbour. If he does so the neighbour can cut the branches so long as he could do so without entering upon the land of the owner of the tree. He need not even give a notice to the owner. The owner of the tree cannot acquire any right by prescription to allow his branches to overhang because an old nuisance cannot by passage of time become a respectable nuisance. Merely because the previous owner did not object, perhaps due to his relationship with the owner of the tree, it cannot be said that there has been acquiescence and therefore the succeeding owner is estopped or prevented from claiming relief against the nuisance."
15. The decision in 1962 Ker LT 407 was a case where the court was considering an easement of support. Those principles do not apply to the facts of this case in respect of branches overhanging neighbouring land. The Court below was therefore right in decreeing the suit. There is no merit in this Second Appeal. Second Appeal is dismissed, but in the circumstances of the case, no costs.