Opinion
No. A-95246.
1947-05-2
MURRAY v. HEABRON.
J. Glenn Williams, of Cincinnati, for plaintiff. Murphy, Murphy & Deddens, of Cincinnati, for defendant.
Syllabus by the Court.
The owner of land has the right to cut off, sever or eliminate in any manner he finds expedient any portion of a tree which protrudes or over-hangs in or upon his property, and Section 12490, G.C.O., does not apply to such a situation.
Action by Eva W. Murray against Margaret Heabron for declaratory judgment as to rights of adjoining landowners arising as a result of limbs and branches of a tree protruding over a property line.
Judgment in accordance with opinion. J. Glenn Williams, of Cincinnati, for plaintiff. Murphy, Murphy & Deddens, of Cincinnati, for defendant.
HESS, Judge.
This is an action for declaratory judgment as to the rights of adjoining landowners arising as a result of limbs and branches of a tree protruding over a property line.
The petition alleges that the plaintiff is the owner of certain real estate located at 7025 Maple Avenue, Maderia, Ohio, and that the defendant is the owner of adjoining real estate located at 7029 Maple Avenue, Maderia, Ohio; that a certain large maple tree has its trunk located on the property of the defendant (7029 Maple Avenue) about six feet from the property line of the plaintiff (7025 Maple Avenue); that the limbs and branches of said tree protrude over and upon the property of the plaintiff for a distance of about twenty feet; that the defendant objects to plaintiff clearing the branches of the tree from plaintiff's property; that the defendant claims the plaintiff is without lawful authority to clear the over-hanging limbs and branches by virtue of Section 13490, General Code of Ohio. It is further claimed in the petition that the leaves and branches of the maple tree cause damage to the plaintiff's property as well as shutting out light.
Generally, the answer of the defendant admits all the allegations of the petition except the damage charges and relies upon Sec. 12490 as authority to require plaintiff to refrain from clearing the limbs and branches of the maple tree from his property.
Counsel for both plaintiff and defendant request the Court to declare the rights of the parties relative to elimination of the over-hanging or protruding branches of the maple tree. The facts relative to this specific issue are not in dispute.
Whether this specific problem has been too simple or has been overlooked or has not arisen in sufficiently serious matters for the courts of Ohio to consider it is not known, but the fact is the Ohio cases are almost completely silent on the question of the rights of the parties concerning protruding or over-hanging branches of trees.
Under the common law the plaintiff in this case could cut off, sever, destroy, mutilate or otherwise eliminate any portion, or all, of the branches of the defendant's tree which encroaches on, over or in her land.
Has this common law rule been changed by statute or case law in Ohio? The only statute bearing upon the subject is Sec. 12490, G.C., which reads as follows:
‘Whoever, without lawful authority, cuts down, destroys or injures a vine, bush, shrub, sapling or tree standing or growing upon the land of another, * * * injures or destroys a product standing or growing thereon, or other thing attached thereto, shall be fined not more than one hundred and fifty dollars or imprisoned not more than thirty days, or both.’
Clearly this statute does not apply to the case at bar. Obviously, the legislature did not contemplate that this statute should cover the instant case or it would have left out the owrds, ‘without lawful authority.’ The good reasoning and common sense of the common law made the removal of branches over-hanging and protruding upon the land of another a lawful act.
If further test be needed to determine the lawfulness of the plaintiff's right to cut or remove the protruding branches we turn to Section I and XIX of Article I of the Constitution of Ohio.
Sec. I, Art. I, Constitution of Ohio. ‘All men are, by nature, free and independent, and have certain inalienable rights, * * * acquiring, possessing, and protecting property.’
On could not protect his property if the adjoining property owner was permitted to encroach upon it.
Sec. XIX, Art. I, Constitution of Ohio. ‘Private property shall ever be held inviolate, but subservient to the public welfare * * *.’
Thus we find that the Ohio Constitution forbids Section 12490 from applying to the instant case.
In peace times property taken for public use must be paid for by the public agency taking it. To hold that this statute prevents the branches from being removed by the plaintiff would in effect permit the use of the plaintiff's private property by the defendant without compensation, and further subject him to prosecution in event he attempted to remove the protruding branches from his land.
Therefore, if the legislature intended Sec. 12490 to apply in this case, then it would be unconstitutional. Again the Fourteenth Amendment of the Constitution of the United States provides that the State shall not deprive any person of property without due process of law. Over-hanging and protruding branches certainly deprive the one upon whose property they over-hang or protrude from the full use of his property.
Turning to the cases which have dealt with other aspects of encroachment upon property by the adjoining owner we find that a landowner's property rights extend indefinitely upward, and that those rights are protected from invasion to the same extent as surface rights. 1 O.Jur. 418, Sec. 7; Young v. Thedieck, 8 Ohio App. 103; 18 A.L.R. 658; 2 C.J.S., Adjoining Landowners, § 45, p. 38.
The over-hanging or protruding branches or roots of trees may be cut or lopped off by the person upon whose property they over-hang or protrude. 18 A.L.R. 659, 660, etc.
It, therefore, appears that the common law rule of law is unaffected by Sec. 12490, General Code of Ohio, and under the facts presented in the instant case the plaintiff is entitled and has full right to cut off, sever or eliminate any portion of a tree which protrudes or over-hangs in, on or over her land.
Since there has been no attempt to prove damages which might have arisen in this cause that issue is not considered.
A judgment entry will be presented in keeping with this opinion.