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
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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
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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
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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.
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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
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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
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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.
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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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