Spreading bamboo is nuisance and trespass

Where defendants’ bamboo has spread into plaintiffs’ yard, damaging plaintiffs’ shed, the bamboo is both a nuisance and trespassory and must be abated.

Issues before the court

“The Court has before it the claims of Plaintiffs David Willems and Petra Willems charging trespass regarding Defendants’ bamboo and fence adjoining the boundary line separating the parties’ properties, and alleging nuisance as to said bamboo, a spotlight pointed in the direction of Plaintiffs’ bedroom windows, and Christmas lights festooning the fence, and the countervailing affirmative defenses of Defendants James Batcheller and Christine Bartoletta of statute of limitations, laches and adverse possession.

“The Court must decide:

“(A) whether the bamboo is a nuisance;

“(B) whether the bamboo is trespassory;

“(C) whether the spotlight and the Christmas lights are a nuisance;

“(D) whether Plaintiffs’ claims are barred by the statute of limitations, or whether the defense of laches applies instead to the trespass and nuisance claims; and

“(E) whether the fence is trespassory, and whether adverse possession may be maintained as an affirmative defense thereto to excuse such trespass so as to delineate a new boundary line.

Rulings

“The Court holds as follows:

“1) the spread of bamboo into Plaintiffs’ property is a nuisance, inasmuch as it has previously damaged the roof of their shed and is substantially impairing the occupants’ comfort, convenience, and enjoyment of their property, causing a material disturbance or annoyance in use of the realty, and must be controlled by Defendants in application of a relative balance of the equities test;

2) the bamboo is trespassory for it involves the human agency of planting the same in close proximity to Plaintiffs’ property and in a way reasonably predictable to intrude upon their property, and though each increment of trespass is trivial or the damage is trifling, because past damage to Plaintiffs’ shed informs renewed damage is foreseeable from the uncontrolled spread of the bamboo, and in application of a relative balance of the equities test also pertaining to nuisance, in order to avoid a multiplicity of actions at law, Defendants must undertake reasonable efforts to permanently abate the trespass;

“3) the spotlight pointed in the direction of Plaintiffs’ bedroom windows is a nuisance while the Christmas lights affixed to the fence between the properties are not, for the freedom from discomfort and annoyance to constitute an actionable nuisance it must be significant and of a kind that would be annoying to a normal person in the community;

“4) while the statute of limitations of actions under Virginia Code § 8.01-243 generally applies to claims of trespass and nuisance, in the instant case, because the relief sought by Plaintiffs is solely equitable, pursuant to Virginia Code § 8.01-230, the statutory limitation periods do not apply to Plaintiffs’ claims and the defense of laches instead delimits the period within which the actions had to be brought, but Plaintiffs’ claims are not barred in application thereof; and

“5) while the fence is trespassory, the Defendants can procedurally maintain and have proven adverse possession as an affirmative defense thereto, and the Court finds that the boundary line between the parties’ properties is now constituted by the fence installed by Defendants.”

Relief ordered

“Defendants are ordered to take permanent measures to control the bamboo in the area where it is currently planted proximate to Plaintiffs’ shed in such a manner that it does not grow under or over ground past the boundary of Defendants’ property nor contact the roof of Plaintiffs’ shed, even in times of wind, ice or snow.

“Defendants are further permanently enjoined from positioning the spotlight complained of so as to allow it to shine towards Plaintiffs’ bedroom windows.

“The Court in addition holds the boundary line between the parties’ properties is determined to be the location of the fence, and that Defendants’ Christmas lights affixed to the fence between the properties are not deemed to be a nuisance.”

Willems v. Batcheller, Case No. CL-2020-6575, March 6, 2022, Fairfax County Circuit Court (Bernhard). John C. Altmiller, Leonard C. Tengco for plaintiffs. Michael Kalish for defendants. VLW 022-8-013, 22 pp.