Urban fruit gleaning & trespass.

One creative way in which community organizations are feeding people in the city is through gleaning uneaten and unwanted fruit from trees on public land and in private backyards.

For example, the Baltimore Orchard Project seeks to:

  • Glean fruit from trees in yards, streets and civic places, fruit that would otherwise go to waste, and distribute it to those in need.
  • Partner with  individuals and organizations to plant trees, orchards and food forests for the benefit of the community.

Baltimore Orchard Project: About Us page.

Let’s think about an interesting legal question related to urban gleaning:

Sue owns a large apple tree, which grows near the border of her property; the property line is clearly marked with a fence. A few branches of Sue’s apple tree extend over the fence and hang above the yard of Sue’s neighbor, Janet. Sue seems to always have more apples than she can eat, and Janet would like to pick the apples that hang from the branches of Sue’s tree over Janet’s yard to share with her neighbors.

The question is: who owns the fruit on the branches above Janet’s yard?

The answer depends on what state Sue and Janet live in.

William Blackstone‘s traditional rule states:

Cuius est solum, eius est usque ad coelum et ad inferos.

[Loosely translated: “for whoever owns the land, it is theirs all the way up to the heavens and down to Hell.”]

Under this rule, Janet owns the branches that have trespassed onto her property, because everything within her boundary lines, up to the heavens, belongs to her.

Ad coelum rule: California

California follows Blackstone’s rule, stating that Janet can cut the branches off, if she wishes, or recover damages for trespass from Sue (Grandona v. Lovdal, 21 P. 366, 369 (1889).).

Also, in California, “[i]f [Janet] has a right of ownership in the branches, as distinguished from the mere right to cut them off to the extent that they ‘encroach’ on his or her property, [Janet] also has an ownership right to the products attached to the overhanging branches,” in this case, the apples on the branches of Sue’s tree that hang over Janet’s land. (6 Cal. Real Est. § 14:15 (3d ed.).)

So in California, and any other states that follow the traditional rule, Janet may pick the apples that hang above her property to share with her neighbors. The apples belong to Janet, not Sue.

Trunk rule: Vermont, Connecticut

Other states have followed a different rule, which establishes the ownership of the tree and its branches, fruit, and roots solely by the location of the trunk.

A 19th century Connecticut case states: “If a tree, the trunk of which stands on the land of A, extend some of its branches over, and some of its roots into, the land of B, A and B are not joint owners or tenants in common of such tree; but it is, with such overhanging branches and the fruit thereof, the sole property of A; and if B gather the fruit from such overhanging branches and appropriate it to his own use, he is liable in trespass to A.” (Lyman v. Hale, 1836 WL 66 (Conn.).

Under this rule, Janet could not collect the apples that hang over her property, and she also could not prevent Sue from coming onto Janet’s property for the purpose of collecting Sue’s apples.

Janet could, however, treat the branches as a trespass on her property and either sue for trespass and receive damages from Sue or cut the branches down that hang over her property. Janet could also dig up any roots that have crossed to her property under the ground, because the traditional property ownership rule states that she owns her property down to the center of the earth.

Vermont follows the same rule in Skinner v. Wilder, 1865 WL 2196 (1865).

How strange that the “trunk rule” means that a neighbor may cut down branches entirely but may not pick fruit from those same branches.

Posted on by Kristine Dunkerton

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