[CANUFNET] Trees and the Law in Canada. Where to Measure Boundary Trees to Determine Ownership

[Bohdan Kowalyk]

I agree the case should not be described as precedent setting.  In Ontario,
the long standing Forestry Act (section 10(2)) simply confirms the common
law understanding that every tree whose trunk is growing on the boundary
between adjoining lands is the common property of the owners of the
adjoining lands.  It does not go into specifying measurement details if
that is what the argument is about.

Bohdan Kowalyk


On Fri, Mar 26, 2021 at 9:27 AM Michael Richardson via CANUFNET <
canufnet at list.web.net> wrote:

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