It is common for Texas residents to question whether they have a legal right to remove a neighbor’s tree limbs that hang over their property. Texas law generally allows you to remove encroaching branches, so long as you do not harm the health of the tree. However, an important exception to this general rule arises out of the law of easements.
In some cases, the encroaching tree limbs are protected by an easement by prescription. An easement by prescription is acquired by a use that is open and notorious or with knowledge and acquiescence on the part of the owners of the servient tenant, together with a use that is adverse, exclusive, uninterrupted and continuous for a period of more than ten years. Elliott v. Elliott, 597 S.W.2d 795 (Tex. App. – Corpus Christi 1980, no writ); City of Corpus Christi v. Krause, 584 S.W. 2d 325 (Tex. App. – Corpus Christi 1979, no writ); Davis v. Carriker, 536 S.W. 2d 246 (Tex. App. – Amarillo 1976, writ ref’d n.r.e.).
If tree limbs have been encroaching over your property for over ten years in the manner explained above, the tree owner may have a legal right to prevent you from removing any branches or limbs via a prescriptive easement. In fact, a Texas Appellate Court in Ortiz v. Spann recognized the possibility of protecting a tree and its limbs through an easement by prescription. While the court did not specifically rule on the issue, the case was reversed and remanded for clarification with respect to the specific claim of easement for the overhanging tree limbs. See Ortiz v. Spann, 671 S.W.2d 909 (Tex. App. – Corpus Christi 1984, writ ref’d n.r.e.).
Tree limbs that have encroached over a property in excess of 10 years may present an exception to the general right to trim the branches and limbs that extend over a property. To avoid liability, consider whether cutting the limbs will cause harm to the tree. More importantly, consult a competent real estate attorney to help determine whether those limbs have acquired a prescriptive easement.
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