Ask the County Law Librarian – The Case of the Encroaching Bamboo
Q. Hello Coral,
I am so glad to have found your website! I have tried to research this problem but have had no luck in resolving it. From reading your site, I have found my problem to be related to "Encroachment."
The problem is my neighbor’s grove of bamboo shoots have started to infest my side of the fence, with their rhizomes roots sprouting and growing into bamboo shoots on both mine and their side of the fence. In a short amount of time, their bamboo grove has grown to about 20-30 ft tall. Even with the bamboo at that height, they are continuing to water it. On my side of the fence, there are multiple bamboo plants that have been shooting up to about 3 ft tall. I have been trying to control this problem by cutting the bamboo plant as they sprout up.
It seems we have may to seal off the area with concrete (?) to ensure that the bamboo plant does not come into our side of the fence. Cutting the bamboo plant cannot fix the problem because the way these roots grow, is they can grow in multiple directions and will continuously grow and grow. Because this particular plant can become so uncontrollable, certain states actually ban bamboos from being grown!
Also, since the plant is growing so high so fast, wouldn’t the state or county have the right to request them to cut it down once it reaches a certain height?
Thanks in advance for your help!
I look forward to hearing from you.
A. Thanks, Sandy! As you read in my article on “Neighbor Troubles,” published April 5, 2012:
Encroaching limbs and roots are generally considered a legal nuisance. As mentioned above, the injured party may start a civil action or abate the nuisance. “Abating the nuisance” of encroaching limbs and roots usually means that you can trim them back to the property line, as long as you do not cause unnecessary injury to the plant, or enter the neighboring property without permission. Without permission, it is considered trespassing. More information about encroaching trees and vegetation can be found in Neighbor Law: Fences, Trees, Boundaries & Noise from Nolo Press.
So it looks like you could seal off the area with concrete as long as you did not harm the neighbor’s bamboo plant.
As for limiting the height of the bamboo, Chapter 4 of Neighbor Law, titled "Encroachment: Invading Branches and Roots," states on page 73 that “[w]hen trees are planted close together and used as a barrier, they are natural fences and may be subject to local laws regulating fences. Fence laws can govern the height allowed and also the location of fences on property.”
California Civil Code § 841.4 provides:
Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3, Part 3, Division 4 of this code.
“Title 3, Part 3, Division 4 of this code” is § 3501, which provides that “the remedies against a private nuisance are: 1. A civil action; or, 2. Abatement.”
You may wish to read Wilson v. Handley, 97 Cal. App. 4th 1301 (2002), which discusses all of the elements of the statute, including whether a row of trees can be a "structure in the nature of a fence," whether a particular fence “unnecessarily exceeds” 10 feet in height, and whether the dominant purpose of erecting a particular fence is to annoy a neighbor so as to satisfy the “malice” element of the statute.
You did not say where you are located, but you should check your county and city’s ordinances to see whether they have any height restrictions on fences or any prohibition against bamboo. For example, the Sacramento City Code provides in § 9.16.070 that “[n]o person shall maliciously erect or maintain in the city, for the purpose of annoying the owners or occupants of adjoining property, any fence or other structure in the nature of a fence unnecessarily, exceeding six feet in height.” There do not appear to be any restrictions on fence height in the Sacramento County Code, but you should always check.
Good luck, and thanks for reading!
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