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<p>Everyone is entitled to their opinion. However this was tested in court lets say and an interpretation was made. Thanks Michael</p>
<p>Best Jack Radecki</p>
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<p>---------- Original Message ----------<br />From: Michael Richardson <mrtree@kos.net><br />Date: March 26, 2021 at 7:21 AM<br /><br /><br />I have to disagree that the Hartley v. Cunningham & Scharper case is<br />precedent setting.<br /><br />1) The Forestry Act was never intended for use in the Urban Forest, let<br />alone an urbanized landscape.<br /><br />2) both parties stipulated to the Forestry Act being the correct<br />legislation and as such the Forestry act was not tested in court<br /><br />3) Precedent is not simply set by winning a case. In common law, prior<br />cases can be used to inform an argument and decision but precedent is set<br />in higher courts (such as the Supreme Court of Canada)<br /><br />4) Common law has suggested that property on property lines is jointly owned.<br /><br />Suggesting that a court win sets precedent is probably better left to<br />lawyers, judges, and law scholars and is likely something that the<br />arborist should not be stating.<br /><br />Julian Dunster has posted a number of articles that show boundary trees<br />are subject to concepts of common law that go back hundreds of years. or<br />more and recent cases have not changed that.<br /><br /><br /><br />> As I recall from the precedent setting case on Humewood Avenue that Philip<br />> Van Wassenaer and I co-represented, the judge agreed that if any part of<br />> the main trunk (up to the main crotch or first scaffold limb) intersected<br />> the property line, then it would become a co-owned tree. Does that fit<br />> your profile? This was initially taken from the Forestry Act.<br />><br />><br />><br />> Best Jack Radecki<br />><br />><br />><br />> From: CANUFNET <canufnet-bounces@list.web.net> On Behalf Of Julian Dunster<br />> via CANUFNET<br />> Sent: March 24, 2021 11:00 AM<br />> To: canufnet@list.web.net<br />> Cc: Julian Dunster <jd@dunster.ca><br />> Subject: [CANUFNET] Trees and the Law in Canada. Where to Measure Boundary<br />> Trees to Determine Ownership<br />><br />><br />><br />><br />><br />> My latest article, extracted from the book, is now published in the<br />> Lawyer's Daily.<br />><br />><br />><br />> Available for download here: https://dunster.ca/home/articles/<br />><br />> --<br />><br />> On Behalf of Dunster and Associates Environmental Consultants Ltd.<br />><br />><br />> Dr. Julian A Dunster R.P.F., R.P.P.., M.C.I.P., ISA Certified Arborist,<br />> ASCA Registered Consulting Arborist # 378,<br />> ISA Tree Risk Assessment Qualified<br />> Honourary Life Member ISA + PNWISA<br />><br />> North American distributor for Rinntech<br />> www.dunster.ca <http://www.dunster.ca><br />> www.treelaw.info <http://www.treelaw.info><br />> www.rinntech.info <http://www.rinntech.info><br />><br /></p>
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