The claimants owned a semi-detached house, and on the grass verge of the highway outside the property was an oak tree which was between 170 and 190 years old. The tree was on the other house’s side of the verge.
The road was an ancient highway now vesting in the Council, and it was accepted that the tree was planted and grew after the highway had been dedicated to the public.
During a very dry summer the claimants’ house began to suffer serious structural damage. They asserted that this damage was caused by subsidence due to moisture extraction or dehydration of the clay soil by the roots of the tree. The Council said that the damage was caused by rehydration of the soil, resulting in heave rather than subsidence but at first instance the judge agreed with the claimants.
The judge found that
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