When trees growing entirely on one owner’s land invade another’s property, either landowner may cut the limbs or roots at the property line. This rule was reiterated in the case of Flusche v. Uselton
, 201 S.W. 2d 58, involving a land sale gone awry. The plaintiffs who wanted to buy the land sued for damages. They desired the tract primarily for the shade cast by a large pecan tree; the trunk set six inches onto the neighbor’s property. The court ruled that while the plaintiffs would receive the benefit of the shade, they would have no lawful right to prevent the owner from destroying the tree. Thus, one neighbor can not dictate the preservation of another’s trees.
One of the more interesting tree cases is Ortiz v. Spann
, 671 S.W. 2d 909. The Spanns (defendants) attempted to remove limbs from three large live oak trees protruding onto their property. The plaintiffs (owners of the trees) sought injunctive relief to prevent the Spanns’ trimming them at the property line. The plaintiffs asked for and received a summary judgment because the limbs had acquired an easement, created either by implication or prescription.
Even though the summary judgment was reversed on appeal and the issue remanded for trial, the question remains. Can a tree limb protruding onto another’s land for a number of years create an easement insuring its future preservation? No further appellate cases have addressed the question.