boundary deodara dispute--Ekka

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treeseer

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Neighbors co-own tree. One wants it down because of litter, the other values it highly. Here are 2 pics: next post

ASSIGNMENT
I was assigned to inspect a deodara cedar tree, Cedrus deodara, to assess its condition and risk potential. I was also asked to recommend a program of care for the tree to maintain its safety and health.

OBSERVATIONS
The lower trunk appears to be free of decay. No damage by pests was noted, except for small holes made by sapsucking birds. The top of the tree is dead, and some decay is present. There are a few dead inner branches in the middle of the tree. The roots to the west and north are covered by a driveway and bare ground.

DISCUSSION
Sapsuckers are common pests. Their feeding is rarely more than a nuisance to the tree. The dead top is common in deodaras, which naturally form a round-headed top at maturity. Deodaras are an “Excellent specimen evergreen because of extremely graceful and pendulous habit.” (Manual of Woody Landscape Plants) Even though this is a wide-spreading tree, branches rarely break due to storms. If the planned removal of healthy landscape trees, evident by the red flagging around their trunks, is carried out, the deodara will be more exposed to storms.

I removed the red flagging from the deodara, so contractors will not confuse the tree with those belonging exclusively to . The book Arboriculture and the Law cites court rulings that state: “…neither of the property owners is at liberty to cut the tree without the consent of the other; not to cut away any part that extends into the property owner’s land, if injury would result to the common property of the tree…each owner has an interest in the tree sufficient to demand that the owner of the other portion shall not destroy the tree.”
I also note here that the removal of the other trees will expose the home and the dog pen to intense sunlight and winter winds, removing the following contributions:
Shade. These trees block the radiation from the sun in the summer months. The temperature under large trees is often more than ten degrees cooler than in the open. A nearby property which lost all its shade trees had a 67% increase in cooling costs.

Transpirational Cooling. A mature pine tree can transpire over 100 gallons of water through its leaves per day. The evaporation of this water into vapor has a considerable cooling effect, and by recycling the water before it gets to the ditch, the trees save the county on stormwater control costs.

Erosion control. By intercepting precipitation, and also through its network of feeder roots near the surface, these trees keep the soil intact. Through the activity of microorganisms attached to and among these roots, they make a hospitable environment for smaller ornamental plants to thrive, and build the soil resource.

Wind control. By deflecting, obstructing and filtering the wind, they moderate the climate for this property. This effect also benefits the nearby community. By filtering sunlight, they provide the perfect environment for the understory plants. If the trees were gone, these other plants would be stressed.

Pollution and noise abatement. Gaseous and particulate pollution is intercepted by the leaves and bark, and buffered by the rootzone. The sound of traffic and other urban activity is muffled.

Ecosystem values. By attracting, sheltering and feeding wildlife, these mature trees are keystone species in the local ecosystem. Their removal would have a ripple effect through the community of songbirds and small mammals, and other species that often escape human notice.

Architecture. Aesthetic values are harder to quantify, and are technically outside the scope of this report. However, most landscape architects would attest to value delivered by framing views, shifting patterns of sun and shade and tying together landscape elements. To the layperson’s eye, the high tree canopies soften and complement the architecture of building, driveway and parking area, bringing natural elements into the urbanizing surroundings.



RECOMMENDATIONS
The dead top and dead branches should be removed. Branches that sprawl over structures could be lightly shortened, but heavy pruning of living branches would be destructive to the tree. The roots to the west and north should be fertilized and mulched. Methods to deliver organic matter and nutrients using structural soil and still allow the continued use of the driveway should be employed. (Moot point--fence put in driveway)Suet feeders and imitation owls and snakes can be installed in the tree to lessen sapsucker damage.

APPRAISAL
I was not hired to do a formal appraisal, but I will share one example of the use of a formula found in the Southeast US Tree Species Rating Guide. The 2001 Basic Value is $48./square inch; multiplied by 707 square inches equals $33, 936. Adjusted by an 80% for species, 35% for condition and 90% for location, the appraised value using this standard formula is $8,500.

This concludes my report. I am available to clarify any portions of it.
 
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Chapter 2

After the lawyers wrangled a bit, the one owner threatened to cut all his branches off at the lot line and the other, my client, threatened legal action and commissioned a followup letter.

"
RECOMMENDATIONS (from original report)
“The dead top and dead branches should be removed. Branches that sprawl over structures could be lightly shortened, but heavy pruning of living branches would be destructive to the tree.”

I have been asked to clarify this portion of my original report. Heavy pruning—defined as more than 15% of the branches in An Illustrated Guide to Pruning, by Dr. Edward F. Gilman-- would be destructive. Dr. Gilman states that “Overpruning large trees can be extremely damaging, resulting in sunscald, decay, excessive sprouting, excess loss of the photosynthetic area, root decline and even death.” These results are detailed below:

Starvation. Mature trees have grown their branches in response to their need for sunlight. Trees need leaves to photosynthesize their food. Without enough food they will be unable to perform necessary life functions and become unhealthy. Their growth rate has slowed down considerably, so they will be slow to replace the lost foliage.

Sunscald. Sudden exposure to light can dry, crack and kill the bark. This can lead to decay.

Decay. A starving tree is less able to close the wounds made by pruning. Wounds that do not close become decayed. Decay on the opposite side of the tree may cause the stem to break and fall on the property.

Excessive Sprouting. If branches on one side of the tree are removed, the branches on the other side will sprout more foliage in an effort to replace the lost food-making capability. This will increase the tree’s imbalance, and the likelihood that it will fall on the ... property.

Root Decline. Roots are stimulated to grow by the hormone cytokinin, which is produced by active buds on the branches. The more branches are removed, the less roots are stimulated to grow. Also, heavy pruning exposes the ground below to sun and wind. This subjects the rootzone to extreme moisture stress, which hurts the roots’ ability to nourish and anchor the tree.

Many other reputable authorities clearly state that heavy pruning will damage a mature tree. The International Society of Arboriculture’s Best Management Practices specify that no more than 20% of any age tree’s foliage be removed in any pruning operation.

LEGAL RAMIFICATIONS
The courts have held that on boundary trees, “neither of the property owners is at liberty to cut away the part which extends into the property owner’s land, if injury would result in the common property of the tree.”, and “where the trunk of a tree impinges upon the lot line,…that each owner has an interest in the tree sufficient to demand that the owner of the other portion shall not destroy the tree.” Quotes are from the book Arboriculture and the Law, by Merullo and Valentine (1992).

This cedar poses no nuisance in the legal sense. Its shedding of leaf and cone litter can at most be considered an inconvenience. The doctrine of self-help “was largely ignored with the court ruling that a neighbor must act reasonably in cutting roots or branches at the property line.”, and “…an appraisal is needed to ascertain the monetary value of plants damaged or destroyed by a neighbor.” Quotes are from the book Tree Law Cases in the U.S.A., by Bloch (2004)."

END OF CHAPTER
The threats to whack the tree continued after this was sent, but they were not as loud. I reduced the top down to a viable side branch, and made some light raising/reduction cuts to clear the neighbor's property. Both parties are satisfied, and one day I hope will treat each other civilly (my client was no prize in this area either). I'll climb the tree 1x/yr to see that it remains safe enough.

The top got sealed and capped but that's another thread. So Ekka you get boundary tree disputes down there?
 
Excellent post. We are fortunate enough to have Dr. Gillman on the Board of the Florida Chapter of ISA. He is generous with his time and knowledge. I think the law is pretty clear on this issue, it is just getting the neighbors to comprimise that is tough some times. Great job on that!
 
If the tree was in one persons yard, how does the co-ownership rule come into it? Does it have to be a certain distance from the fence etc? I know by the photo that that one looks in the middle but thats rare.

Nice report. Well done.

I did pick a flaw in something ... cytokinin is produced more so from the roots and auxin is produced from the buds, the auxin suppress apical dominance of the roots getting them to spread laterally and increases the rate of metabolism of the feeder roots which inturn supplies the canopy with more water and elements etc. Cytokinin breaks apical dominance and encourages lateral development of shoots, promotes chlorophyll production, leaf unrolling and photosynthesis.

Over here the tree would have to have a specific protection order on it (most dont) and anything within 3m of a boundary fence is excluded from protection unless it has a specific protection order.

Our local law states that a neighbour may remove any parts of a tree, limbs or roots that tresspass onto their property (unless there's a VPO).

But I have rarely seen one in the middle of a fence, if it was it's usually a council tree on the footpath which we're not allowed to touch anyway.

What if both agreed to get rid of it, would all be OK then?
 
If the tree was in one persons yard, how does the co-ownership rule come into it?
*It doesn't, because if the trunk is not co-owned then it is not considered co-owned.

I know by the photo that that one looks in the middle but thats rare.
*If any portion of the trunk at ground level is on the line, it's co-owned. Some areas also cover trunks that are above the ground.

Over here the tree would have to have a specific protection order on it (most dont) and anything within 3m of a boundary fence is excluded from protection unless it has a specific protection order.
*That eliminates a lot of trees from protection then. Even if it is on private property there can be a PO? My client wanted to get an injunction from the court, which would accomplish the same thing.

Our local law states that a neighbour may remove any parts of a tree, limbs or roots that tresspass onto their property (unless there's a VPO).
*Some here still grant that right to one property owner, even tho it denies the rights of the other (to have a safe, healthy tree).
What does V stand for?

What if both agreed to get rid of it, would all be OK then?
*Absolutely; certain "champion" trees are covered by ordinance, but the rest are not.

Re auxin/cytokinin, I quoted a solid reference, but my grasp of chemistry is such that you're right I'd be better off speaking in more general terms.

Re Gilman, I've tried to get him to move to NC, but Gainesville is hard to beat. W ehave no one who even tries to do what he does. His Illustrated Guide to Pruning belongs on every arborist's bookshelf.
 
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We are fortunate to have Dr. Ed Gilman here in Fl. his Seminars are hands on, at Nurseries or Gardens alot of the time. Our Deodors do ok here, some root problems. Early decay.
 

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