Monday, November 25, 2013

Fancher v. Fagella case brief

Fancher v. Fagella case brief summary
650 S.E.2d 519 (Va. 2007)

Appellant owner brought an action against appellee neighbor, seeking injunctive relief compelling the neighbor to remove a tree and its invading root system from the neighbor's property, and an award of damages to cover the cost of restoring the owner's property to its former condition. The Circuit Court of Fairfax County (Virginia) granted the neighbor's motion to strike and entered an order denying injunctive relief. The owner appealed.

The owner claimed that the roots and branches of the neighbor's tree had damaged the owner's property. He owner claimed that he had tried self-help, but that it was ineffectual because of the continuing expansion of the root system and branches. The trial court found that injunctive relief was not available.


  • The appellate court found that the facts pleaded, if proved by owner, would have constituted a continuing trespass, resulting in actual harm to his property. 
  • The appellate court overruled the case relied by the trial court, Smith v. Holt, 174 Va. 213, 5 S.E.2d 492 (Va. 1939). 
  • In weighing the equities in a case of this kind, the chancellor was required to necessarily first consider whether the conditions existing on the adjoining lands were such that it was reasonable to impose a duty on a tree owner to protect an adjoining owner's land from damage caused by the tree's intruding branches and roots. 
  • If such a duty was found to exist on the part of the tree owner, the chancellor was required to determine the extent of the remedy. 
  • If self-help was inadequate as a permanent remedy, complete removal of the tree was an available remedy when the equities were balanced.
The judgment was reversed and the case was remanded for further proceedings.

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