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In the Shade of a Tree Page 5 <br /> <br /> <br />Reprinted by permission of Bench & Bar of Minnesota, Steve Pihlaja and Lorrie Stromme, March 2002 <br />to the neighbor.10 Picking the fruit may not be so simple. Ownership of the fruit does not <br />give the neighbor any right to trespass onto your client's property to retrieve the fruit. <br />Courts would probably weigh the right to keep trespassers out of your client's yard <br />against the tree owner's right to harvest the fruit o f her tree. The orchard owner whose <br />livelihood depends upon the harvest probably has a stronger claim than an urban <br />gardener. <br /> <br />The law is also unclear on the issue of fallen fruit. As a practical matter, it would not be <br />worthwhile for a neighbor to sue your client for keeping fallen fruit, because it would <br />have nominal value. The courts would probably hold the tree owner responsible for <br />making advance arrangements to harvest the fruit if it had sufficient value to bother with. <br />Your client is probably safe to keep the fallen fruit if his neighbor says nothing about it. <br />As with most neighbor disputes, the best counsel you can give is to encourage <br />communication and neighborliness. <br /> <br />Negligence: Hazard Trees and Limbs <br /> <br />The trend across the country is to hold tree owners legally responsible for damage <br />caused by unsound or "hazard trees."11 A hazard tree is a tree with a defect plus a <br />target, such as a sidewalk, a car, or a house in the path of an unstable or decaying tree. <br /> <br />Minnesota cases involving negligence in tree law tend to fall into two categories: <br />damage caused by trees or damage done to trees. Foreseeability is the common thread <br />that runs through both types of claims. In both instances, courts will look at what should <br />have been obvious to the tree owner about the tree's condition. <br /> <br />Damage Your Client's Tree Causes. If a neighbor's tree is unsound and threatens your <br />client's property, the neighbor may be liable for any damage that occurs. The test is <br />whether the tree owner knew or should have known that damage was likely. A tree <br />owner is not expected to be a tree expert, but she is expected to recognize obvious