Fancher v. Fagella

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.

RICHARD A. FANCHER                           OPINION BY
                                  SENIOR JUSTICE CHARLES S. RUSSELL
v.   Record No. 062339                   September 14, 2007

JOSEPH B. FAGELLA

              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      M. Langhorne Keith, Judge

      This is an interlocutory appeal taken pursuant to Code

§ 8.01-670(B)(1) from an order denying injunctive relief.     The

dispositive question is whether an injunction may issue to

compel an adjoining landowner to remove a tree, the roots of

which intrude into, and cause significant, continuous and

increasing structural damage to the plaintiff’s property.     The

appeal requires us to revisit our holding in Smith v. Holt,

174 Va. 213, 5 S.E.2d 492 (1939).

                         Facts and Proceedings

      The essential facts are not in dispute.    Richard A.

Fancher and Joseph B. Fagella are the owners of adjoining

townhouses in the Cambridge Court subdivision in Fairfax

County.   Fagella’s property is higher in elevation than

Fancher’s and a masonry retaining wall running along the

property line behind the townhouses supports the grade

separation.    There is a sunken patio behind Fancher’s

townhouse, covered by masonry pavers.
     Fancher brought this suit against Fagella, alleging that

Fagella has on his property a large sweet gum tree that

constitutes a noxious nuisance; the tree’s invasive root

system has damaged and displaced the retaining wall between

the parties’ properties, displaced the pavers on Fancher’s

patio, caused blockage of his sewer and water pipes and has

impaired the foundation of his house.   Fancher also complained

that the tree’s overhanging branches grow onto his roof,

depositing leaves and other debris onto his roof and rain

gutters.    He contended that he had attempted self-help, by

trying to repair the damage to the retaining wall and the rear

foundation of the house, as well as trying to cut back the

overhanging branches, but that these steps were ineffectual

because of the continuing expansion of the root system and

branches.   Fancher prayed for an injunction compelling Fagella

to remove the tree and its invading root system entirely, and

an award of damages to cover the cost of restoring the

property to its former condition.

     The circuit court heard the evidence ore tenus.     At the

hearing, Fancher testified that the tree’s trunk was on

Fagella’s property, about “two to three feet from the

party/common wall.”   Fancher estimated the tree was about 60

feet high at the present time and two feet in trunk diameter

at its base.


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     Fancher presented the testimony of an arborist who

qualified as an expert witness and testified that the sweet

gum is native to the area, that it grows to “incredible

heights of 120 to 140 feet” at maturity and would eventually

reach a trunk diameter of 4 to 6 feet.   The arborist testified

that the tree was deciduous, dropped “spiky gumballs,” had a

“heavy pollen load,” an “extremely invasive root system” and a

“high demand for water.”   His opinion was that the tree was

presently “only at mid-maturity,” that it would continue to

grow, and that “[n]o amount of concrete would hold the root

system back.”   The root system was, in his opinion, the cause

of the damage to the retaining wall and the pavers and “in the

same line as those cracks to the wall and the foundation.”

The arborist stated that the tree was “noxious” because of its

location and that the only way to stop the continuing damage

being done by the root system was to remove the tree entirely,

because the roots, if cut, would grow back.

     Fancher also presented the expert testimony of two

engineers, who opined that the pressure of the tree’s

expanding root system was the cause of the structural damage

to the retaining wall.   At the conclusion of Fancher’s case,

Fagella moved to strike the prayer for injunctive relief.    The

court, relying on our decision in Smith v. Holt, granted the

motion to strike and entered an order denying injunctive


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relief, retaining for further adjudication Fancher’s claim for

damages.   We awarded Fancher an interlocutory appeal.

                            Analysis

                        A. Right of action

     The issues raised by vegetation encroaching across

property lines have frequently confronted courts throughout

the country, leading to results that are less than harmonious.

The earlier decisions, including our own, were decided in

times when the population was far less densely concentrated

than at present, and more often engaged in agriculture.    More

recent cases have been concerned with problems arising in more

urban settings.   A thorough review and analysis of those cases

was recently made by the Supreme Court of Tennessee in Lane v.

W.J. Curry & Sons, 92 S.W.3d 355, 360-63 (Tenn. 2002), and it

would serve no purpose to repeat that discussion here.

     Suffice it to say that, as the Tennessee court explained

in Lane, several rules have evolved.     (1) The “Massachusetts

Rule,” holds that a landowner’s right to protect his property

from the encroaching boughs and roots of a neighbor’s tree is

limited to self-help, i.e., cutting off the branches and roots

at the point they invade his property.    That rule was based on

Michalson v. Nutting, 175 N.E. 490 (Mass. 1931), where the

court observed that “the common law has recognized that it is

wiser to leave the individual to protect himself, if harm


                                4
results to him from this exercise of another’s right to use

his property in a reasonable way, than to subject that other

to the annoyance, and the public to the burden, of actions at

law, which would be likely to be innumerable and, in many

instances, purely vexatious.”   Id. at 491.   (2) The “Virginia

Rule,” holds that the intrusion of roots and branches from a

neighbor’s plantings which were “not noxious in [their]

nature” and had caused no “sensible injury” were not

actionable at law, the plaintiff being limited to his right of

self-help.   That rule was based on our holding in Smith v.

Holt, 174 Va. 213, 5 S.E.2d 492 (1939), where we also said,

“when it appears that a sensible injury has been inflicted by

the protrusion of roots from a noxious tree or plant onto the

land of another, he has, after notice, a right of action at

law for the trespass committed.”    Id. at 219, 5 S.E.2d at 495.

We affirmed the trial court’s order sustaining a demurrer in

that case, holding that neither equitable relief nor damages

were warranted because the invading roots came from a privet

hedge that was not “noxious” in nature and had caused no

“sensible injury.”   Id. at 220, 5 S.E.2d at 495.   (3) The

“Restatement Rule,” based on Restatement (Second) of Torts

§§ 839, 840 (1979), imposes an obligation on a landowner to

control vegetation that encroaches upon adjoining land if the

vegetation is “artificial,” i.e., planted or maintained by a


                                5
person, but not if the encroaching vegetation is “natural.”

(4) The “Hawaii Rule,” holds that living trees and plants are

ordinarily not nuisances, but can become so when they cause

actual harm or pose an imminent danger of actual harm to

adjoining property.    That rule is based upon Whitesell v.

Houlton, 632 P.2d 1077 (Haw. Ct. App. 1981), where the court

said:    “[W]hen overhanging branches or protruding roots

actually cause, or there is imminent danger of them causing,

[substantial] harm to property other than plant life, in ways

other than by casting shade or dropping leaves, flowers, or

fruit, the damaged or imminently endangered neighbor may

require the owner of the tree to pay for the damages and to

cut back the endangering branches or roots and, if such is not

done within a reasonable time, the . . . neighbor may cause

the cut-back to be done at the tree owner’s expense.”    Id. at

1079.    The Tennessee court, in Lane, after considering the

merits and weaknesses of the foregoing rules, decided to adopt

the Hawaii approach, partially overruling an earlier Tennessee

decision that had generally adhered to the “Massachusetts

Rule.”    Lane, 92 S.W.3d at 363-64.

        The “Massachusetts Rule” has been criticized on the

ground that it is unsuited to modern urban and suburban life,

although it may still be suited to many rural conditions.      The

“Restatement Rule” has been criticized on the grounds that it


                                  6
is often impossible to determine whether a plant has

originated naturally or has been introduced or nurtured by

human activity; further, that rule illogically imposes

liability on a landowner who carefully maintains his property

and spares one who neglects his land and permits his

vegetation to “run wild.”

     Our “Virginia Rule” is subject to the just criticism that

the classification of a plant as “noxious” depends upon the

viewpoint of the beholder.   “Noxious" has been defined as

“Hurtful; offensive; offensive to the smell.    The word

'noxious' includes the complex idea both of insalubrity and

offensiveness.    That which causes or tends to cause injury,

especially to health or morals.”     Black’s Law Dictionary 1065

(6th ed. 1990).   Many would agree that poison ivy meets that

definition because of its proclivity to cause personal injury.

Some would include kudzu because of its tendency toward

rampant growth, smothering other vegetation.    Few would

include healthy shade trees, although they may cause more

damage, and be more expensive to remove, than the others.    We

conclude that continued reliance on the distinction between

plants that are “noxious,” and those that are not, imposes an

unworkable standard for determining the rights of neighboring

landowners.




                                 7
     Accordingly, we now overrule Smith v. Holt, insofar as it

conditions a right of action upon the “noxious” nature of a

plant that sends forth invading roots or branches into a

neighbor’s property.   We find the reasoning of the Tennessee

court in Lane persuasive, and adopt the Hawaii approach as

expressed in that case:

     Accordingly, we hold that encroaching trees and
     plants are not nuisances merely because they cast
     shade, drop leaves, flowers, or fruit, or just
     because they happen to encroach upon adjoining
     property either above or below the ground. However,
     encroaching trees and plants may be regarded as a
     nuisance when they cause actual harm or pose an
     imminent danger of actual harm to adjoining
     property. If so, the owner of the tree or plant may
     be held responsible for harm caused to [adjoining
     property], and may also be required to cut back the
     encroaching branches or roots, assuming the
     encroaching vegetation constitutes a nuisance. We
     do not, however, alter existing . . . law that the
     adjoining landowner may, at his own expense, cut
     away the encroaching vegetation to the property line
     whether or not the encroaching vegetation
     constitutes a nuisance or is otherwise causing harm
     or possible harm to the adjoining property. Thus,
     the law of self-help remains intact . . . .

Lane, 92 S.W.3d at 364.   We also overrule Smith v. Holt

insofar as its language may be read to imply that equitable

relief is precluded even when a nuisance is found to exist.

                             B. Remedy

     In a proper application of stare decisis, the circuit

court followed Smith v. Holt in denying injunctive relief in

the present case.   Because of the rule we now adopt, it



                                8
becomes necessary to consider the appropriate remedy.    The

facts pleaded, if proved by Fancher, would constitute a

continuing trespass, resulting in actual harm to his property.

Under traditional equitable principles, a chancellor may

enjoin a continuing trespass, even when each increment of

trespass is trivial or the damage is trifling, in order to

avoid a multiplicity of actions at law.   Seventeen, Inc. v.

Pilot Life Ins. Co., 215 Va. 74, 78, 205 S.E.2d 648, 653

(1974).   Thus, on remand, the circuit court may properly

consider injunctive relief in the present case.

     Not every case of nuisance or continuing trespass,

however, may be enjoined.   The decision whether to grant an

injunction always rests in the sound discretion of the

chancellor, and depends on the relative benefit an injunction

would confer upon the plaintiff in contrast to the injury it

would impose on the defendant.   Any burden imposed on the

public should also be weighed.   Akers v. Mathieson Alkali

Works, 151 Va. 1, 8-9, 144 S.E. 492, 494 (1928).

     In weighing the equities in a case of this kind, the

chancellor must necessarily first consider whether the

conditions existing on the adjoining lands are such that it is

reasonable to impose a duty on the owner of a tree to protect

a neighbor’s land from damage caused by its intruding branches

and roots.   In the absence of such a duty, the traditional


                                 9
right of self-help is an adequate remedy.   It would be clearly

unreasonable to impose such a duty upon the owner of

historically forested or agricultural land, but entirely

appropriate to do so in the case of parties, like those in the

present case, who dwell on adjoining residential lots.1

     Further, if such a duty is found to exist on the part of

the tree owner, the chancellor must determine the extent of

the remedy.   Under the circumstances of the case, will self-

help by cutting off the invading roots and branches, followed

by an award of damages to compensate the plaintiff for his

expenses, afford an adequate and permanent remedy, obviating

the need for an injunction?2   If not, will complete removal of

the defendant’s tree be the appropriate remedy when the

equities are balanced?   An affirmative answer to the latter

question will necessitate a mandatory injunction.   As in all

cases in which equitable relief is sought, the chancellor's

decision must necessarily depend on the particular facts shown

by the evidence, guided by traditional equitable principles.


     1
       The duty of the owner of a large tract of rural land,
whose neighbor creates an adjoining subdivision of small
residential lots, presents a question not now before us. We
leave that decision to another day.
     2
       In such a case, the chancellor may consider any evidence
bearing on the question whether cutting invading roots back to
the property line will cause the tree to become so unstable or
diseased as to constitute an imminent danger to the properties
of either of the parties, or others.



                               10
                          Conclusion

     Because the circuit court, following our decision in

Smith v. Holt, did not consider equitable relief to be

available, we will reverse the order appealed from and remand

the case for further proceedings consistent with this opinion.



                                         Reversed and remanded.




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