Can a landowner cut branches extending over his property?

21. I agree with the respondent that Anderson v. Skender supports the proposition that as a land owner the applicant can cut branches extending over his property. However, I accept the applicant’s evidence that the branch that fell on his shed did not extend over his property permitting him to cut it. The respondent does not reside on her property, it is tenanted, and therefore, the applicant is in a better position to say where the branch came from. Even if the branch did overhang the applicant’s property, I find that the right to cut a branch protruding over a property is not a legal obligation that relieves the respondent of her responsibility to address a potential hazard from the nuisance created by the tree.

22. Hayes v. Davis involves a claim in nuisance for damages after two trees fell onto the neighbour’s property injuring one of the occupants. The court found that the owner of the tree had been warned about five to six months before the incident about a cluster of trees bending quite significantly as if they were going to snap, including the two that fell. The owner of the trees took no active steps to address the concerns with the trees and, in fact, stated he did not have money to remove the trees. The majority for the court of appeal agreed with the trial judge that the owner knew or ought to have known that the trees posed a hazard and as such was liable for damages as the owner took no steps to abate or prevent the known and foreseeable risk.