Francher v. Fagella

650 S.E.2d 519 (Va. 2007)

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Nature of the Case

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Facts

Fancher (P) brought this suit against Fagella (D) alleging that a large sweet gum tree on D's property constitutes a noxious nuisance. P claims that the roots have damaged and displaced the retaining wall between the parties' properties, displaced the pavers on P's patio, caused blockage of his sewer and water pipes and has impaired the foundation of his house. The tree's overhanging branches also deposit leaves and other debris onto his roof and rain gutters. P asked for an injunction compelling D 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. An arborist testified that the sweet gum has 'extremely invasive root system' and a 'high demand for water.' This particular tree was presently 'only at mid-maturity,' that it would continue to grow, and that 'no amount of concrete would hold the root system back.' The root system was, in his opinion, the cause of the damage and 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. The expert testimony of two engineers stated that the pressure of the tree's expanding root system was the cause of the structural damage to the retaining wall. D moved to strike the prayer for injunctive relief. The court granted the motion to strike and entered an order denying injunctive relief, retaining for further adjudication P's claim for damages. D was allowed an interlocutory appeal.