Hartley v. Cunningham et al.

[Indexed as: Hartley v. Cunningham]

Ontario Reports

Court of Appeal for Ontario,

Juriansz, Hourigan and Benotto JJ.A.

December 17, 2013

118 O.R. (3d) 288 | 2013 ONCA 759

Case Summary

Statutes — Interpretation — Application judge not erring in holding that "trunk" in s. 10(2) of Forestry Act should be given its ordinary dictionary meaning — "Trunk" of tree being that part of tree from its point of growth away from roots up to where it branches out to limbs — Forestry Act, R.S.O. 1990, c. F.26, s. 10(2).

The applicant brought an application for a declaration that she was the sole owner of a maple tree so that she could cut it down without the consent of the respondent, her next-door neighbour. Section 10(2) of the Forestry Act provides that "Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands." The applicant submitted that she was the sole owner because at ground level the trunk was entirely or almost entirely on her side of the property line. The application was dismissed. The applicant appealed.

Held, the appeal should be dismissed.

The application judge did not err in finding that "trunk" should be given its ordinary dictionary meaning. It is that part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage. [page289]

Statutes referred to

Forestry Act, R.S.O. 1990, c. F.26 [as am.], s. 10(2)

Trees Act, R.S.O. 1990, c. T.20 [rep. by S.O. 1998, c. 18, Sch. I, s. 65]

APPEAL from the judgment of J.P. Moore J., [2013] O.J. No. 2304, 2013 ONSC 2929 (S.C.J.) dismissing an application for a declaration that the applicant was the sole owner of a tree.

John A. Howlett, for appellant.

Clayton C. Ruby and Nader R. Hasan, for respondents.

[1] Endorsement BY THE COURT: -- The appellant appeals a judgment dismissing her application for a declaration that she is the sole owner of a large Norway maple tree so that she can cut down the tree without the respondents' consent. The respondents are her next-door neighbours. The appellant argues that ownership of the tree should be determined in accordance with jurisprudence under the Trees Act, R.S.O. 1990, c. T.20, which was replaced by the Forestry Act, R.S.O. 1990, c. F.26. Under that jurisprudence, the appellant submitted she would be the sole owner of the tree because at ground level its trunk was entirely or almost entirely on her side of the property line.

[2] The Forestry Act provides in s. 10(2): "Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands." There is no definition of "trunk" in the legislation.

[3] The application judge considered the evidence before him, including the evidence of the expert witnesses, and concluded that the word "trunk" should be given its ordinary dictionary meaning. It is that part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage. There are no words in the statute that limit the meaning to the "trunk" at ground level. He commented that the point at which the trunk emerges from the soil would be lead to arbitrariness because soil can be added to the base of the tree to change the point of emergence. On the basis of the evidence before him, the application judge concluded that the tree was a boundary tree and that the appellant and the respondents are co-owners.

[4] We agree with the application judge's interpretation of s. 10(2) of the Forestry Act and his conclusion dismissing the appellant's application to be declared the sole owner of the tree.

[5] The appeal is therefore dismissed with costs to the respondents, fixed in the amount of $10,000, all inclusive.

Appeal dismissed.

End of Document