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Va. High Court Breaks New Ground on Tree Liability

The Fanchers called Saunders to trim the branches to the property line. He told them that the 60-foot tree was only at mid-maturity and could grow to be 140 feet. They foresaw years and years of continuing problems.

The Fanchers said they asked their neighbor, Joseph Fagella, to cut the tree down. Fagella, who did not return phone calls for comment, declined. The Fanchers decided to sue. But under the old precedent, they didn't have much recourse.

In the past, most states used the "Massachusetts rule," which held that if a tree grew on your property but the branches hung into your neighbor's yard, that neighbor could cut them back as far as the property line. If the roots cracked the neighbor's patio or if the branches ripped their siding, it was their problem. And if the neighbors' pruning killed your tree, you could sue them for damages.

Maryland and the District still follow the Massachusetts rule, according to officials there.

Virginia's 1939 law was slightly different. Under that law, which was overturned yesterday, a landowner could sue a neighboring tree-owner only if the tree was "noxious" and caused "sensible injury." A big problem, however, was that no one ever defined a "noxious tree."

The Fanchers argued that the sweet gum was "noxious" because of its location. They petitioned for an injunction to make their neighbor remove the tree and roots and sued for damages. Fairfax County Circuit Court denied the injunction in 2006, citing the old rule. The Fanchers appealed to the Virginia Supreme Court.

"We're living in a very densely populated subdivision in Northern Virginia," Cook-Walker-Fancher said. "Virginia is growing in leaps and bounds -- the roads are testimony to that with all the traffic. We can't have 17-foot back yards with 90-foot trees."

Yesterday, the court adopted a new rule and sent the Fanchers' suit back to Circuit Court. The rule, modeled after a 1981 case in Hawaii, says that a neighbor can't sue a tree owner for the little annoying things -- "casting shade or dropping leaves, flowers, or fruit." But it's a different story if the tree becomes a nuisance. The owner of a nuisance tree "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," the court said.

The case at Cambridge Station has turned acrimonious, with allegations and defamation-of-character countersuits pending. And just a few weeks ago -- as a jury was about to hear testimony in the Fanchers' claim for $662,000 in damages on each of four counts of trespass, noxious private nuisance, boundary dispute and negligence -- Fagella cut down the old sweet gum tree.

Staff researcher Meg Smith contributed to this report.

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