There have been a couple of articles in Jinja Shinpō on the legal situation around sacred forests, written by a priest who is also a lawyer. (These articles were in the July 4th and July 11th issues.) The first article drew attention to the fact that sacred forests were declining, and that this was generally due to decisions taken by the jinja themselves. The sacred forests are, after all, private property, and so other bodies cannot normally cut them down. (There are occasional exceptions for government-mandated projects.)
There are two sets of regulations that help to protect them in that context. The first are the Jinja Honchō regulations, which require jinja to get approval before cutting their forests down. The problem with these is that jinja are often driven to sell off the forest and the land to survive financially, and Jinja Honchō cannot do much about that problem. In the worst case, the jinja simply leaves Jinja Honchō and goes ahead anyway. The second are national and local preservation orders, which do work, but which cannot be applied to all sacred forests.
The second article went over the legal situation for sacred forests. Part of the problem is that the neighbours of the jinja sometimes complain about the forest or the trees, and threaten to sue if the trees are not cut down, or threaten to simply cut the trees down themselves. The best thing to do, the author argues, is to build good relations with your neighbours so that they like your forest. However, if that doesn’t work, priests need to know their legal rights.
The basic position of the law is that trees are part of real estate. However, if branches extend over neighbouring property, the neighbour can ask for them to be pruned, and if roots extend across the border, the neighbour can cut them back. These rights are limited by the balance between the damage done by the spreading branches, and the damage that would be done to the tree by pruning; the neighbour cannot demand that the tree be pruned in a way that would kill it if the branches are not really causing a problem.
The author also argues that, if a sacred tree’s branches have been spreading out over the neighbouring property for decades, they probably have a legal right to continue using that space, as they have done so openly and without disturbance for a long period. This is a feature of Japanese law, but he does not quote a judgement on this point, so it may be that no-one has yet argued it in court.
The next problem is damage caused by branches falling off trees, or the whole tree falling over. Here, it seems that the jinja is only liable if they were not taking enough care of the tree. If an otherwise healthy tree falls over in a typhoon, the owner is not liable for the damage, but if a tree is allowed to become old and rotten, liability does arise. Similarly, if a tree is by a road or on the borders of the jinja’s land, the jinja is likely to be liable if it falls on a car or house, but if it is in the middle of the sacred forest and falls on someone who is trespassing there, they probably won’t be. (There are precedents for these decisions.)
Finally, people complain about falling leaves, because they mess up their cars and mean they have to sweep their drives. In 1986, the Supreme Court ruled that leaves fall off deciduous trees, it only happens for about one month a year, and people should just put up with it — so they could not have a court order that trees should be cut down and they should be paid damages. (As a side note, the country was being sued in this case, so I suspect that there was a larger issue behind it. You would have to be both seriously rich and seriously eccentric to sue the state over falling leaves.) This precedent means that jinja can safely ignore people who get threatening over this issue.
The message of the second article is that jinja are not legally obliged to cut down trees in response to most complaints, but they do have to maintain trees that are close to roads and other public areas.
There may be another article coming in this series (these are labelled “1” and “2” rather than “upper” and “lower”, and there is no “The End” at the end of the second one). If so, I will write about it later.