Court: You can sue neighbor over trees

By Larry O’Dell, Associated Press – September 14, 2007

RICHMOND – The Virginia Supreme Court said Friday that you can sue a neighbor to force him to remove a tree that’s damaging your property.

The unanimous decision reverses a legal precedent established by the court in 1939 and recognizes that people live closer to their neighbors than they did decades ago in a more rural America.

“What they’re doing is trying to adapt to the realities of life now,” said L. Steven Emmert, an appellate lawyer who closely monitors the Supreme Court. “There were no suburbs in 1939. You had the emerging popularity of automobiles in the 1940s, and suddenly people were living more or less right on top of each other. It makes sense to re-evaluate.”

The ruling stems from a dispute between Richard A. Fancher and Joseph B. Fagella, next-door neighbors in a Fairfax County town house development. Fancher sued Fagella over a large and still-growing sweet gum tree whose roots spread onto Fancher’s property, damaging a retaining wall, patio, plumbing and the foundation.

Fairfax Circuit Court Judge M. Langhorne Keith ruled that under a 1939 Supreme Court decision, all Fancher could do is cut back the roots to the property line and sue for monetary damages. The Supreme Court said Keith properly applied the existing legal precedent.

However, the court said it was time to change the precedent to provide more recourse to suburban residents.

The tree at issue in the Fairfax case was already 60 feet tall and had a trunk 2 feet in diameter at mid-maturity, according to an arborist who testified in the case. He said the roots caused the damage to Fancher’s property and would just grow back if they were cut at the property line. The only way to stop the damage, he testified, was to remove the entire tree.

The Supreme Court reversed Keith’s ruling and returned the case to his court for trial under the new legal principle.

Attorneys for the two litigants did not immediately return phone messages seeking comment.