The neighbours chopped down her trees to get a better view of Shuswap Lake, now they owe her $35,000

A Sicamous woman who lost the shade in her backyard after her neighbours cut down her trees so they would have a better view of the Shuswap Lake has been awarded $35,000.

BC Provincial Court Judge George Leven said it was unreasonable for the neighbours to go ahead and cut down the trees without confirming precisely what their neighbour was allowing them to do.

“A simple telephone call or email could easily have clarified any confusion,” the Judge said. “(But they) proceeded without taking this simple precaution.”

According to an Aug. 19 BC Provincial Court decision, Sicamous resident Jacalyn Hays said her backyard was once a “shaded oasis” but had now become “unbearable.”

The case dates back to July 2021, when Hays’ neighbour, Alan Fenton, approached her about trimming some of her trees to improve his view of Shuswap Lake.

Hays agreed, but only gave limited permission to cut small saplings provided they were no more than three inches in diameter, and mature trees could only be cut a maximum of six or seven feet in height. She asked for the trimmings to be removed so they weren’t a fire hazard.

“She also says she specifically instructed him not to touch the larger trees on the hillside closer to her residence, as they helped stabilize the slope and provided needed summer shade for her property,” the decision read.

The next morning she left and didn’t return until October.

When she did get back to Sicamous, she didn’t like what she found.

The ground was littered with trimmings and some trees had been cut more than she requested.

Hays left again, and only returned the following July and was “shocked” to find even more damage.

Several mature trees had had 20 to 40 feet cut from them, and a 50-foot mature birch tree had been chopped down.

She spoke to Fenton, who was apologetic and expressed his dismay about what had happened.

Hays lost shade in her yard and was also worried about the stability of the slope, which had seen a mudslide in 2012.

She took legal action against Alan Fenton, Elizabeth Fenton, Lee Fenton, Cheryl Fenton, William Olthius and Shelly Fenton, arguing they’d trespassed onto her property and cut her trees down without permission.

Sometime afterwards, Alan and Elizabeth Fenton, who were in their 80s, died.

The remaining defendants testified they believed they had received clear instructions from Alan about what they could do.

However, Hays recorded a conversation with Alan when he was still alive.

“From that recording, I conclude that… Alan Fenton was apologetic and acknowledged at the very least, that he and the other defendants had made a serious mistake and were in the wrong,” the Judge said.

The judge flagged a comment made by Bill Olthius which said “Look, we got her approval…let’s don’t worry about it … let’s just get it done.”

Judge Leven said this indicated there was some confusion about how much they were allowed to cut down.

“It would have taken almost no effort to send an email or make a telephone call to confirm that information,” the Judge said.

He ruled each of them had benefitted from the cutting of the trees by improving their view of the lake and they were all liable for trespass.

Judge Leven ordered they pay $34,064 to cover the cost of new trees, an $18,000 shade structure, and two air conditioning units. 

The judge said he would have awarded another $5,000 to $10,000 in damages because Hays could no longer enjoy her yard as she used to, had the small claims court maximum of $35,000 not already been reached.