UK case law and poisonous trees

It is recognised that particular issues may stem from where trees with poisonous fruit and / or foliage is allowed to overhang onto neighbouring property, where animals can graze upon this poisonous matter both removed from and attached to the tree. Without question, the accepted precedent with regards to overhanging branches apply, and principally under the ruling from the Rylands v Fletcher [1868] case (not to do with trees, but instead the escape of water from the defendant’s reservoir), which stated: “it seems but reasonable and just that the neighbour who has brought something on his own property (which was not naturally there), harmless to others so long as it is confined to his own property, but which he knows will be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property.” In this sense, as long as a poisonous tree is confined to the bounds of the grower’s property (duty of care), there is no issue to arise.

Since this ruling, all related cases were confined to the late 1800s and early 1900s, and relate to yew trees specifically. In Wilson v Newbury [1871], horses owned by the claimant (Wilson) died as a result of consuming foliage from a yew tree on Newbury’s land. However, it was found that the consumed foliage had been clipped from the tree, and as it was uncertain who had clipped the foliage from the tree, nor an indication that Newbury was aware that foliage had been clipped from the tree, the claim was rejected.

A few years later, Erskine v Adeane [1873] also resulted in a failed claim, though this was due to the death of the defendant before the trial began. The issue here stemmed from Adeane’s gardener throwing clippings over the boundary and onto Erskine’s property (which was ‘rented’ from Adeane – Erskine was the tenant), which were then consumed by sheep. These sheep later died. As the case failed purely because of the death of the defendant, it is an anomalous case that perhaps bears little magnitude. In difference circumstances, the case may well have been successful. The case does however highlight that clippings cannot be placed, or allowed to fall, onto neighbouring land where any kept livestock (or other animals – including pets) may consume the clippings – assuming, as per Wilson v Newbury [1871], that the origin and cause of the clippings to be there is identifiable (in this case, Adeane’s gardener was the culprit).

Erskine v Adeane [1873] is also interesting because the claim also involved the death of cattle owned by Erskine. Such cattle died as a result of grazing upon foliage of a yew tree whose branches were overhanging onto the land under the control of Erskine, though not before they had also entered Adeane’s land (through a gap in the boundary fence) to graze upon both branches and clippings of the yew. In this matter too, the claim failed, because the judge determined that Erskine should have, prior to ‘entering’ Adeane’s land from who he was renting, identified the presence and subsequent hazardous nature of the yew trees for his livestock. Furthermore, Adeane was, in light of the contractual agreement between both parties, not mandated to fence off his land, and therefore Erskine should have safeguarded his cattle in this sense as well. By a similar token, the claimant’s case in the instance of Cheater v Cater [1914], which saw overhanging yew branches being grazed upon by livestock, also failed. This was because, much like the contractual agreement between the aforementioned case, the claimant should have identified the yew trees at the time of entering the land and using it for his own purposes. As succinctly put by the judge, “in a case of this kind the tenant takes the land demised as it is, and therefore if the tenant here took the land with the yew trees growing over it so that his cattle could eat of the branches and they did eat, he cannot complain.

However, during a near identical incident during the same time period (in relation to the fencing of land, as set out in Erskine v Adeane [1873]) in Lawrence v Jenkins [1873], as Jenkins was under duty to fence his land, even in spite of it being broken by a third party, damages were awarded to the claimant. From this, one can ascertain that whoever is responsible for looking after a boundary (in terms of fencing, where livestock are present) where poisonous trees reside will, if there is an accident, be held liable for the injury or death of livestock that have consumed such poisonous materials originating from the trees.

Arguably the most significant case applying to poisonous trees is that of Crowhurst v Amersham Burial Ground [1878]. The defendants planted a yew tree on their own land and about four feet from the boundary fence. In the throes of time, as the tree grew, some of the branches grew towards and then over the boundary fence. Parts of the tree consequently became accessible to the claimant’s horse, which was grazing in the adjoining field (including upon these overhanging branches). As a result of this, the horse died, and the claimant brought an action for damages against the burial ground. It was held that, because the defendants had allowed the tree to grow over the boundary that they were consequently responsible, particularly given the fact they should have known that horses will frequently browse on yew foliage within their reach. This ruling in fact followed on from the precedent established in Rylands v Fletcher [1866], which was that if a person brings on to his or her land something which is dangerous or harmful and he allows it to escape, he will be held liable for any injury which may result. However, the case’s judge did state that, if the tree had not been poisonous, then the claimant would have not necessarily had a case, and would instead have had to abate the nuisance (overhang) his or herself.

Following on from Crowhurst v Amersham Burial Ground [1878], the case of Ponting v Noakes [1894] arose. In this scenario, a horse owned by Ponting died as a result of consuming foliage of a yew tree, though there was uncertainty over exactly from which yew the horse had grazed – scope existed for the horse to have eaten from yew trees owned either by Ponting (a yew bush), Noakes, or a third party (known as H). However, because a veterinary surgeon had suggested that, in their professional opinion, the yew tree owned by Noakes was most likely to be the cause, it was held that Noakes’ tree did indeed cause the death of the horse (including at appeal). However, because the land between the two land owners was separated by a ditch, and also a fence on Noakes’ side of the ditch, when compiled with the fact that the yew branches were not actually encroaching onto Ponting’s land, his horse must have been trespassing onto Noakes’ land in order to consume the yew foliage. Therefore, Noakes was not actually found liable (including at appeal).

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UK case law and poisonous trees

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