By Jones Osborn II

Most people know that you can go to court if your neighbor causes a nuisance. The court can order the neighbor to cease causing the nuisance, award damages, or both.

Just what is a nuisance? It has proven to be an unusually difficult thing for the courts to decide. Whether something is or is not a nuisance often depends on the facts and circumstances of the particular case. However, in general terms it is usually considered to be something that unreasonably disturbs one in the free use, possession, or enjoyment of his property. Common examples are continuous loud noises, vibrations, bright lights, noxious fumes, odors or smoke, violations of the common laws of decency, and so forth. The courts often perform a balancing act, considering such things as the character of the neighborhood, the utility of the use, and whether the alleged nuisance preceded or commenced after the complaining party's use.

What if branches from trees or bushes on an adjoining property encroach across your property line, dropping leaves, blocking your view, or causing unwanted shade? Is this a nuisance? Can you go to court to force your neighbor to trim back his trees and shrubs?

Most courts say not. Encroaching branches and roots simply are not normally considered nuisances, although some courts will allow an action if the encroachment is causing substantial damage. That doesn't mean you are without remedy, however. That remedy is self-help, which is always permissible to cure this kind of encroachment. The trees and shrubs can be trimmed back to the property line whether the neighbor likes it or not, and even if it kills the plants. Even though the courts may offer no relief, every property owner has the right to remove encroaching branches and roots by his own hand, and is protected from any liability for damages to the plant when he does so.

For most typical nuisances, however, there is little to do but go to court if the neighbor won't cooperate.