Nuisance by encroachment of roots–‘No damage, no nuisance’ a misconception–Damages and an injunction awarded against neighbouring owner despite evidence as to clay soil and substandard construction of buildings affected
This was a
claim by Mr Basil King, a chartered surveyor, of ‘Tregeagle,’ Green Lane,
Northwood, Middlesex, and his wife, Mrs Mabel King, against their neighbours,
Mr Raymond Taylor and his wife, Mrs Elsie Taylor, of 17 Dene Road, Northwood,
and against A J A Taylor & Co Ltd, of Chancery Lane, London WC2, for
damages for encroachment by roots of trees and for an injunction to restrain
further nuisance.
Mr B W T Leech
(instructed by William Charles Crocker) appeared for the plaintiffs, and Mr D G
Rice (instructed by Muriss, Saywell & Co, of Northwood) represented the
defendants.
Giving
judgment, EVELEIGH J said that there had been a question as to the ownership of
17 Dene Road, but it was now agreed that Mrs Elsie Taylor was owner, and she
was therefore the sole defendant in the case. The plaintiffs’ case was that
they bought their land in 1952 and their bungalow was completed in 1954. The
site was first cleared of a number of trees, and the soil was the typical
London clay. Mr King himself built the boundary wall with 17 Dene Road in 1954,
on the north side of his land. In 1958 a crack appeared in the northern
boundary wall, and Mr King wrote to Mr Taylor, drawing his attention to the
fact that tree roots were encroaching upon the plaintiffs’ property. Mr Taylor
replied: ‘I don’t think any of our trees would do any damage to your property.
The roots of my trees will not extend far down the slope towards your
property.’ On another occasion in 1958
Mr Taylor wrote: ‘I don’t think the roots of my lime trees will ever do any
damage to your house. I think the trees contribute very much to the scene. It
would be an act of vandalism to cut them down, and I don’t propose to do
so.’ In 1971 the north-east wall of the
plaintiffs’ garage cracked and then the floor, followed by the other walls. At
the same time the path to the north of the bungalow cracked and became uneven.
A complete renewal of the garage and path would be necessary today; repair
would not be sufficient. The drains on the north-east side of the bungalow
cracked, and roots were found growing in a manhole behind the bungalow.
For the
defence, it was contended first that London clay soil was known to shift with
the changes in the seasons and with the action of the elements, and that
irrespective of any action of tree roots, therefore, the damage to the drains
and path would not be surprising. However, expert evidence had satisfied him
(his Lordship) that both elm and lime tree roots had played a substantial part
in causing the shifting in the soil at the back of the plaintiffs’ bungalow.
That conclusion emerged clearly from the evidence of both the defence and the
plaintiffs. There had been substantial root growth, and experts from both sides
found roots below the foundations of the bungalow. The bungalow itself was not
damaged, but the fact that the roots had reached the foundations would make it
not surprising if the path and drains nearer the trees had been adversely
affected. He (Eveleigh J) bore in mind the possibility of damage being caused
by the natural course of events and the action of the clay soil, but expert
witnesses had said that the soil would be affected by trees taking water from
the soil. He had also to bear in mind that the path constructed in the same way
on the other side of the bungalow was unaffected. He came to the conclusion
that the action of the tree roots, both lime and elm, had been substantially
responsible for shifting the soil and damaging the drains and path. With regard
to the boundary wall, it was clear that this had cracked as a result of tree
root action, but the defendants contended that the clay soil would be expected
to cause some damage unless the foundations went down at least four feet. That
observation did not detract from the fact that the roots had played a
substantial part in the collapse of the wall. One could view the defendant’s
position with some sympathy. The plaintiffs having built the wall where it was,
an undue burden might be said to have been placed on the neighbours by
expecting them to pay for a wall that was likely to crack. Nevertheless he (his
Lordship) found it impossible to come to any other conclusion than that the
tree roots were a substantial cause of the wall cracking.
Although no
damage had been done to the bungalow, the plaintiffs sought an injunction to
restrain further encroachment from the roots. The defence argued that if there
was no damage, there was no nuisance, but this was a misconception. The word
nuisance had many different shades of meaning. It could accurately be said that
there could be no claim for damages unless it was established that damage had
been caused, but he (his Lordship) thought it was sufficient to establish
damage that the tree roots were shown to be abstracting water from the soil and
making the soil less suitable than it was before they encroached. Then the
defence contended that the bungalow had been built on insufficient foundations
to cope with the climatic conditions of the clay soil. This bungalow, however,
had stood since 1954 without damage in spite of the fact that the roots had
been operating in the vicinity. There was nothing to justify the defence in its
claim that the plaintiffs had forfeited their protection through the law of
nuisance. There was nothing unreasonable in granting an injunction if the
threat to the stability of the bungalow was a real one. The evidence showed
that there were elm roots underneath the bungalow. A defence expert witness had
said that it was clear that roots from the defendant’s elms and limes had
reached the foundations of the bungalow. That witness could see little damage
to the foundations, and did not think that felling the trees would help because
of the disturbance that would cause when the soil settled and heaved. It was
clear, in his (Eveleigh J’s) view, that even the defence witnesses accepted
that the soil under the foundations of the bungalow had been affected. The
presence of the roots did present a serious threat to the structure, and the
roots presented all the ingredients necessary for damage to foundations.
Therefore, as the roots presented a threat, the plaintiffs were entitled to
their injunction.
There remained
the question of the garage. He (his Lordship) had come to the conclusion that
the elms on Mrs Taylor’s property had substantially interfered with the soil
conditions under the garage. The trees had been saplings when the garage was
built, but they had since grown to a substantial size. He accepted the
defendant’s evidence that the construction of the garage was substandard;
however, the building had stood until 1971. Whatever its structural faults, it
had withstood the climatic changes in the London clay from 1954 to 1971. He
thought the plaintiffs were entitled not to have the support of their garage
weakened by the action of roots. He found the roots were a substantial cause of
the damage to the garage. Although there was some dispute about which
neighbour’s trees had caused cracking in the garage, he thought it was similar
to a case of a passenger being injured when two cars collided at a crossroads.
The passenger was entitled to claim from both drivers for injuries, and the
drivers had to argue over their respective contributions. Therefore the
plaintiffs were entitled to claim damages for the garage, and he (Eveleigh J)
assessed the various sums due at £450 for the drains, £240 for the wall, £151
for the path and £2,000 for replacing the garage. There would be an injunction
restraining the defendant or her servants or agents from causing or permitting
roots from any tree on the defendant’s
Costs were
awarded against the defendant.
