In the Garden: If a Tree Falls…

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By Charles Kidder

I was walking in the Smoky Mountains many years ago. It was a perfectly pleasant day, with a light breeze. Suddenly I heard a cracking and crashing of limbs and twigs, as if a critter were running near by and getting closer to me. I stood still and waited, not sure what I was about to see. I was blithely assuming that this critter was not running at me, however.

Then, in far less time than it took for you to read the above—Kah-Whummp! A tree branch about five feet long and half a foot in diameter hit the ground a few yards away.  But for dumb luck, I could have been under it.  By my conservative estimate of wood density, the limb would have easily weighed sixty pounds and could have caused me considerable injury. It was a rude awakening for a tree hugger.

Most gardeners appreciate trees, but we have to temper that affection with a healthy respect for the damage they can cause. From 1995 through 2007, 407 deaths occurred in the U.S. from wind-related tree failures. And recent experience with microbursts and derechos in Virginia has made that all the more obvious.  What can you as a homeowner do about hazardous trees?  And what can you do about the hazards of trees that you don’t own?

Then again, what trees actually pose a “hazard”? The answer: It’s a bit like, “if a tree falls in the woods, and nobody’s there…” Falling trees and branches are not legally considered hazards if they don’t have a reasonable chance to hit any person or property.  So a certain tree right next to a trail could be a hazard, but a hundred feet away the identical tree would not be hazardous.  Dead trees can certainly be left standing if they don’t pose a threat to any person or thing.  Aside from their wildlife value—nesting sites, food for woodpeckers, etc–snags off in the distance can provide a picturesque character to the landscape. But close to human activity, dead trees will typically unpredictably drop branches and require either removal or radical pruning.

A trickier case is trees that are alive, but showing signs of stress, such as dead twigs, cracks in the bark, or root damage from construction.  Such a tree could soldier on for years or might even recover, given proper treatment, but only a certified arborist is qualified to make an assessment.  And even perfectly healthy living trees can come down in strong winds: softwoods will uproot with winds of about 87 mph and can snap when speeds exceed 104 mph. Hardwoods are only slightly stronger, requiring winds about 4-6 mph faster before they fail. So, do all trees within a certain distance of your home and yard have to be viewed with a jaundiced eye?

The answer to that question may well depend on your site’s susceptibility to wind, as well as your tolerance for risk. It’s meaningless to say that “winds above XX mph only occur every Y years” because they could occur again tomorrow. Or maybe not for another hundred years. Perhaps more important is your neighbor’s tolerance for risk, assuming that a tree could affect his property. Which brings us to sticky legal questions. (At this point, I should remind every one that I have done some legal research on this topic, but I’m not a lawyer. If in doubt, consult an attorney.)

Trees pay no attention to property lines, whether they are standing upright or falling over. A tree located near a boundary may eventually send its limbs—and roots—over to your neighbor’s property. At which point, those limbs and roots become part of his property. He is fully in his rights to remove any growth that is on his property, even though it may butcher the tree and be construed as the act of a not-so-good neighbor. But what if he starts eying the portion of the tree on your property, claiming it could cause damage on his side?

If your tree is perfectly healthy—more on that in a bit—you should have nothing to worry about.  The only thing that could bring your tree down would be an Act of God, such as a major windstorm, and you can’t be blamed for that. But who said the tree was in good health? You’d better have a written statement from a certified arborist attesting to that fact, not just your own opinion.

On the other hand, let’s suppose your tree was showing some signs of distress, and your neighbor was the one that hired the arborist. Assuming he could get a good look at the tree, he might declare that it was in decline and posed a hazard to his client’s property. Armed with this information, your neighbor can then send you a certified letter requesting that you take down the tree. What are your obligations then?

Legally, none. Still, you might consider hiring your own arborist and hope that the second opinion is more favorable. On the other hand, you might decide that your neighbor is indeed right and you have the tree taken down. You might also approach him and suggest a 50:50 cost split, since he will benefit from removal as much as you. Finally, you could do nothing and hope that the tree causes no harm. But if it does, then your neighbor—or more likely, his insurer—can come after you for negligence. Then you or your insurer will pick up the tab for damages.

Please don’t be so scared by all of this that you hire the first guy that cruises the neighborhood with a chain saw. Most especially, do not buy into “topping,” the practice of reducing your tree to a series of stubs in the hope that it will reduce its vulnerability to wind. It will make your tree look awful and likely reduce its lifespan.

And for New Year’s, go out and hug a tree. Just look up first.

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