Legal Question in Real Estate Law in California

Re: Neighbors 60 ft pine tree encrouching on our property

The facts you've given place your problem in a grey area of the law, in my opinion.

On the one hand, the roots and branches constitute a clear trespass, and you have the right to remove them, especially if they are 'noxious,' i.e. causing some kind of harm. On the other hand, according to one appellate decision, this must be done 'non-negligently,' which I would take to mean that if you were on notice that the tree might die as a result of your action, you could be considered negligent.

What it seems to boil down to is a balancing of interests. The law does not condone doing $31,000 of harm to property X by the owner of property Y when the benefit to property Y is substantially less, even though in a technical sense Y is at fault.

Your case is further weakened by the fact that harm to your driveway is prospective. If you had an existing driveway that was being buckled, your case would be stronger.

I would suggest that you and your neighbor look for some kind of compromise. If I were assigned as a mediator, I would suggest you design and build a driveway that accommodates the tree roots through some kind of flexible surface or bridging over of the roots, with the neighbor responsible for the additional costs of the special design.

Finally, while you might escape liability entirely for consequences of cutting the roots, I would question any advice that tells you that you 'have a perfect right' to cut the roots because they are trespassing, or a private nuisance. Maybe, but you would be taking a significant risk of being slapped with a costly judgment.

Re: Neighbors 60 ft pine tree encrouching on our property

I have had experience with several cases very similar to this one. You could file a lawsuit for nuisance and trespass against your neighbor. You could then bring a motion for an injunction prohibiting your neighbor from interfering with your right to remove the tree or trim its roots. You could then seek damages for your cost of having to remove the tree. I would strongly recommend against doing any damage to the tree without a court order as that could result in serious civil liability on your part. The outcome is not guaranteed, but I think you may have a good chance of prevailing if you follow the proper procedures.