Scottish Court of Session Decisions

Subject_1 PLANTING and INCLOSING.

Helenus Halkerston
v.
James Wedderburn

Date: 3 July 1781
Case No. No 17.

Right of a conterminous heritor as to trees protruding from another's property.

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Mr Halkerston, thinking his garden at Inveresk injured by a row of elms, the branches of which hung over it from the garden of Mr Wedderburn, applied to the Sheriff for redress. After various steps of procedure, the cause was removed to the Court of Session by advocation; when the following abstract question came to be considered, viz. Whether a person is bound to allow his property to be overshaded by the trees belonging to a conterminous heritor?

Pleaded for Mr Wedderburn; The climate of Scotland is such as has induced the legislature to encourage the planting of forest-trees in hedge rows, for the sake of shelter; and, for some time, it was even imposed as a duty upon every proprietor; act 1661, cap. 41. This, however, would have been an elusory enactment, if the common law permitted a conterminous heritor to lop such trees, whenever their branches extended beyond the line of march. By the common law, an heritor may plant so near the march, in prædiis rusticis, that the trees will protrude their branches into the air, over the adjacent ground; nor is there any thing in that law, which authorises the conterminous heritor to lop off such branches, unless he can qualify a material damage arising from their protrusion.

In England, as well as in Scotland, the highways are understood to be vested in the King, for behoof of the public; yet, in both kingdoms, statutes have been found necessary to authorise Justices of the Peace, Way-wardens, &c. to cause prune trees hanging over the road; which could not have been the case, had, the common law allowed any such power to a conterminous heritor.

In like manner, though the Roman law allowed the proprietor of a prædium rusticum to prune such trees to the height of 15 feet, yet this was not a right inherent in him upon the principles of common law, but was derived from the laws of the twelve tables, and confirmed by an edict of the Prætor; L. 1. § 7, 8, 9. D. De arb. cæd. And this very limitation of the right shews, that the Romans did not think the protrusion of branches in itself any encroachment upon the right of property; except so far as it obstructed or impeded the immediate exercise of it. They considered the air as a res communis, incapable of appropriation; and thought, that no encroachment upon it afforded a proper ground of challenge.

Answered for Mr Halkerston; It is understood to be a general rule of law, that no person is entitled to encroach upon the property of another, unless he can show a right of servitude to that effect. One may dig a trench upon his own property, though the effect of it may be, to cut the roots, and destroy the whole of his neighbour's trees. He may raise his wall to any given height; and, in doing so, he may cut down every branch that stands in his way. While a branch from his neighbour's tree does him no harm, he will allow it to remain, upon the same principle of good neighbourhood, that he allows him to hunt over his fields, or to angle in his stream. But the moment this branch does him a real or an imaginary injury; whenever, in short, he wishes to remove it, the law entitles him to do so, in the same manner, and upon the same principles, that it entitles him to protect his property from any other kind of encroachment.

The regulations for the encouragement of planting and inclosing, introduced by the act 1661, can never apply, with any propriety, to two contiguous gardens in the village of Inveresk; and it is not very obvious how the powers given by statute to the public officers entrusted with the care of high-ways, at all derogate from the private right of parties to demand what they are empowed to do.

Neither does the argument on the other side derive any support from the Roman law. The edict referred to, related only to prædica rustica; but, where a similar encroachment was made upon a prædium urbanum, as seems more properly to be the case here, another edict of the Prætor authorised the whole tree to be cut down; L 1. & 2. D. De arb, cæd. At any rate, it is nothing to us, in what manner the Romans chose to limit the natural right now contended for. Under an Italian sun, it might probably be thought, that there could not be too much shade; but the same idea can never be entertained in a northern climate; and, accordingly, the learned Groenwegen, in his treatise, De legibus abrogates et inusitatis, in Hollandia vicinisque regionibus, says expressly, “Si arbor fundo, vel ædibus alients impendeat, nostris et Gallorum moribus, non totam arborem a stripe exscindere, sed id quod super excurrit in totum adimere licet;” tit. De arb. Cæd.

The Court had no doubt upon the principle; and therefore, adhered to the Lord Ordinary's interlocutor, “Remitting the cause to the Sheriff, with this instruction, that he find Mr Wedderburn is bound to prune his trees in such a manner, as they may not hang over the mutual wall, and thereby be of prejudice to Mr Halkerston's fruit and garden.”

Lord Ordinary, Braxfield. Act. Alex. Abercrombie. Alt. Croibie. Clerk, Campbell. Fol. Dic. v. 4. p. 81. Fac. Col. No 65. p. 105.