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Today I was eating plums from a tree growing on private property, which I picked from branches overhanging the public highway. A passing cyclist said "That is scrumping" and I replied "Not on a public highway".

I looked it up. The Royal Horticultural Society advice is a contradiction:

Can I cut off overhanging branches?
Yes, provided it is done without trespassing onto the other person’s property.

Do I have to get permission from my neighbour or give them notice to cut off the overhanging branches?
No.

But it also says

Can I pick and keep the fruit from overhanging branches?
No, not without permission from the owner.

Can I collect windfalls from a neighbour’s tree that overhangs my garden?
No, not without their permission. Windfall fruit still belongs to the owner.

So if I cut off the whole branch, that would be legal?

BBC's Newsnight explored the topic, and consulted some 'experts'.

Urban foraging - ethical?
. . . They were unanimous: picking fruit that overhangs a public right of way is not scrumping, it is decidedly ethical and almost certainly legal.

yet after further investigations, they conclude from the British Trust for Conservation Volunteers that is is not legal:

I was shocked to find that the law on picking fruit from overhanging branches could not be clearer: “A neighbour has no legal right to any fruit on overhanging branches.”

But I am not a neighbour: I was a passer-by on public property.
One comment under the BBC's story says

Clearly the law has changed since medieval common law: the phrase "by hook or by crook" refers to a pilgrim's right to graze food that overhangs their route. If it was within said reach of the path, it could be gathered.

So was it once a right to take such fruit, and when did the law change?

Edit
The plum tree is part of the hedgerow bordering the property (in a semi-rural location), rather than in a garden or orchard. I don't know if that classifies it as wild, but it is not a cultivated variety, as the fruits are quite small.

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  • It is only counted as abandoned fruit if it falls off by itself, but I suppose if somebody were to accidentally walk into the tree knocking the fruit off, they might struggle to complain if it were on a public highway. Commented Sep 13, 2022 at 18:29
  • @Coderxyz the research I did does not distinguish windfalls from fruit on the tree. I suppose that would include both accidentally and deliberately shaking the tree. But here, there was a large amount of fallen fruit, in various stages of decomposition, which made me suppose it wasn't wanted. Commented Sep 13, 2022 at 18:33
  • Why would you cut a branch off a private tree from public property? Does this rule not apply when the branch touches your private property? Commented Sep 14, 2022 at 19:00
  • @BernhardDöbler obviously (?) I won't actually do that, but so that I can legally eat the fruit: I don't need permission to cut off a branch. I was pointing out the apparent anomoly in the law. Commented Sep 14, 2022 at 19:03
  • @BernhardDöbler One might cut off a branch overhanging a road (with the trunk on a neighbor's property) in order to get a better view of the road, making it safer to leave one's driveway. Commented Mar 28, 2024 at 19:30

2 Answers 2

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This is covered by Sections 1 to 6 of the Theft Act 1968.

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

Each relevant word is then dealt with.

Dishonestly does not apply in the circumstance where you have in law the right to deprive the other of it. Here, you have no right: the fruit's owner has every right to the fruit he owns. You have no right just to come along and take it. A right to deprive the other of something would be relevant where he had misappropriated it from you.

Appropriation is any assumption by a person of the rights of an owner. Here, you are assuming the rights of the owner by taking the fruit.

Property is fairly self-explanatory. Everything except land is property.

Belonging to another: "Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest." Here, the owner of the tree has possession and control and a proprietary right and interest.

Permanently depriving means that you treat the thing [fruit in this case] as your own to dispose of regardless of the other’s rights.

All of these apply in your case of taking fruit from a tree owned and grown by someone else.

There is an exception, which may be relevant to the "by hook or by crook" quote:

A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.

But this doesn't apply where the tree is not growing wild.

It is generally held that you can cut off foliage or whatever which is overhanging your land — I can't find a reference specifically, but I expect it's to do with nuisance and free enjoyment of your own land — but the severed parts and any fruit on them are still the property of their owner, and you can't deprive him of them permanently. Public land isn't yours, so you can't cut off branches overhanging it: the public authority can. Even there, they must give them back to the owner.

The 1968 Act repeals a number of prior Acts (all the way back to the First Statute of Westminster in 1265), but I can't see anything relevant to the restriction of common law. If what you quote as common law still applied in 1968, it was that Act which restricted it to wild fruit (as opposed to fruit overhanging public land). It's quite likely that the common law was simply codified and made unambiguous than it was deliberately restricted.

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  • Interesting... the plum tree is part of the hedgerow bordering the property (it is a semi-rural location), rather than a cultivated tree such as in a orchard. I don't know if that classifies it as wild. Commented Sep 13, 2022 at 16:18
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    Re: your bit on "dishonesty". It seems incomplete. Have you considered section 2(1)(b) as being a potentially relevant defence? i.e. what they believed at the time. Commented Sep 13, 2022 at 16:27
  • Indeed, as stated in the question I believed it to be legal. Commented Sep 13, 2022 at 16:30
  • @Rick I think you mean section 2(1)(a); but Yes, I did consider that: believing something to be legal ("I think I can take this") is not the same as the belief that you "have in law the right to deprive the other of it." That's very specific (as I said in the answer). Commented Sep 13, 2022 at 16:54
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    The point about whether the tree in question is actually wild is more interesting. That is specific to the circumstances here and as it's a statutory defence would need to be determined by a court. Commented Sep 13, 2022 at 16:58
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The OP asks about the law relating to urban foraging in .

In (in case anyone is asking this question from that jurisdiction), urban foragers are (IMHO sadly) still hampered by the common law's provision that the entirety of a tree (including any branches, roots, or fruit which encroaches on another's property) belongs to the landowner who owns the land where its trunk meets the ground... with a tangle of co-ownership rights whenever a tree's trunk straddles a boundary. See e.g. https://www.stuff.co.nz/home-property/350204246/it-okay-take-fruit-your-neighbours-tree

In the , the legality of urban foraging is quite variable, depending on state laws and municipal statutes. See https://www.realpmsolutions.com/urban-foraging-guide-for-renters-661

In , there's a long tradition of glanage, see https://www.connexionfrance.com/article/Practical/Your-Questions/May-I-pick-fruit-from-a-tree-on-a-public-road

But... back to in the ... the owner of a fruit tree that's overhanging public land may have granted (or could be persuaded to grant) a usufruct to the public, making it legal to forage. And... perhaps there could be some legally-sound argument for an abandonment of goods, in a case where the owner of these goods evidently has no intention of harvesting them before they rot. However I don't know anywhere near enough about arboriculture and the particulars of your case, to advise you competently on whether or not picking fruit from that tree is at all likely to injure it; nor about whether you could rely on an abandonment argument if the landowner got narky!

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  • I gave the location with the 'england-and-wales' tag. Commented Mar 28, 2024 at 19:39
  • Thanks for letting me know! I'm an utter newbie at this wing of StackExchange. We don't use tags much on stackoverflow.com, electronics.stackexchange.com, academia.stackexchange.com. I couldn't even find the tags on your post until I thought to scroll to its bottom! But it's a nice feature and maybe I'll start using it on other SEs! Commented Apr 1, 2024 at 9:43
  • If you are on StackOverflow you should find that tags are used very much. Commented Apr 1, 2024 at 10:04

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