Court awards $26,800 for ‘lollipopped’ trees

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The Fairfax County Circuit Court has awarded a Vienna couple $26,800 in damages stemming from a trespass claim against their neighbors.

The defendants hired contractors to trim portions of trees on the plaintiffs’ property that crossed over onto their property. Instead, the contractors entered the plaintiffs’ property without their permission and cut off branches around the circumference of the trees, leaving them bare for several feet.

Judge Robert J. Smith said the court was “being asked — apparently for the first time in Virginia – the appropriate damage award for lost aesthetic value of trees.”

“Because Virginia common law has not extended to allow recovery for stumpage value of nonmerchantable trees, the Court awards Plaintiffs $26,800 in damages based on the diminution in market value of their real estate and other costs,” Smith wrote.

The defendants were awarded $2 in nominal damages on counterclaims alleging trespass and nuisance.

Smith wrote the 10-page opinion in Carniol v. Nayak, et al. for the circuit court.

Encroaching branches

Plaintiffs Burton Carniol and Karen Espaldon have lived on their property in Vienna since 1996. Sandip Nayak and Rutu Sahani, the defendants, have lived next door to the couple since 2013.

According to the defendants, the plaintiffs repeatedly entered onto their property to maintain landscaping and trim the branches of a tree located exclusively on the defendant’s property. They said the tree was damaged from the trimming.

Running along the dividing line between the two properties — and situated solely on the plaintiffs’ property — were six mature white pine trees of varying sizes. The trees gave the plaintiffs a sight barrier between their home and the neighbor’s house and offered privacy from a nearby state route.

But some of the trees’ branches hung across the property line. The defendants claimed the encroaching branches led to “significant vine infestations, growth of wild plants, fallen branches … and snake infestations.”

While the plaintiffs were away on vacation in March 2019, the defendants hired contractors to trim the branches of the trees that crossed over onto their property, to “abate the nuisance.”

The contractors entered the plaintiffs’ property without permission and removed branches from around the circumference of the trees so that they were bare several feet up the trunks.

In other words, the trees were “lollipopped.”

“It means exactly what it implies — the trees looked like a giant lollipop,” Smith wrote in a footnote. “Only the trunk extended upward, finally culminating in branches at the top. As I noted in court, the distorted appearance of the trees was hideous. The trees looked, as I said, stupid.”

When the plaintiffs returned from vacation, they learned “almost immediately” that the trees had been trimmed. They hired an arborist to perform a tree valuation. The arborist inspected the lollipopped trees, evaluated their post-pruning viability and prepared a report.

Of the six trees, only one was still viable; the remaining five were damaged so severely they should be removed, the arborist said. The trees’ value before they were lollipopped was set at $45,800.

Although an arborist hired by the defendants stated that all six trees “showed good vigor” and could continue to “thrive,” the plaintiffs proceeded to remove the five trees in May 2019. During the removal, the plaintiffs purportedly damaged the defendants’ back deck, patio and a sprinkler head.

The plaintiffs filed suit in January 2021. The defendants filed a counterclaim three months later.

Unjustified trespass

Smith said the trial presented a pair of questions: Whether the defendants’ trespass onto plaintiffs’ property was justified and if the court should grant relief to the plaintiffs for the stumpage value of the trees when, essentially, the trees had only “aesthetic” value.

The judge, citing 1994’s Cooper v. Horn from the Supreme Court of Virginia, noted that the defendants’ contractors’ actions “clearly constituted trespass under Virginia law.”

Smith then addressed the defendants’ argument — that their entry onto the plaintiffs’ property was justified pursuant to the Restatement of Torts, Second, which states in relevant part that entry on land possessed by another is privileged if it is done “for the purpose of abating a structure or other condition on the land, which constitutes a private nuisance to the actor’s possessory interest in the other land … and after the possessor upon demand has failed to abate the nuisance.”

But the defendants never demanded that the plaintiffs abate the nuisance, Smith pointed out.

“Additionally, it is unlikely that Defendants reasonably believed that a demand would be impractical or useless,” the judge wrote. “It would not impose a substantial burden on Defendants to knock on Plaintiffs’ front door to ask them to tend to the encroaching tree branches. Defendants’ proposed justification under § 201 of the Restatement, Second, fails.”

Smith then looked to the 2007 Supreme Court of Virginia case Fancher v. Fagella, which permits adjoining landowners to “cut away the encroaching vegetation” to the property line as long as they do not cross it.

“Undoubtedly, Defendants would have been allowed to trim the tree branches overhanging their property without it constituting trespass so long as they did not cross the property line onto Plaintiffs’ property,” the judge said. “However, Defendants did cross the line, did trespass, and did cause serious damage to the trees.”

The judge further noted that Virginia common law in this area has not extended beyond Fancher.

“I have found no Virginia court that expressly permitted actors in cases of encroaching vegetation to trespass in their execution of self-help,” Smith wrote.

He concluded that the defendants didn’t offer a “compelling justification” for their trespass.

Damages

The plaintiffs never intended to use the trees for merchantable timber; it would be “unjust” to award them the full stumpage value as they “could have never expected to see [the stumpage value] had this tortious act not been committed by Defendants,” Smith explained.

He further noted that the common law, driven by two cases from more than 100 years ago, left “somewhat unclear on what the proper measure of damages is for injured trees that did not have merchantable value as timber.”

Instead, Smith turned to a 1933 Supreme Court of Virginia case, Norfolk & W.R. Co. v. Richmond Cedar Works, which stated that in cases of nonmerchantable timber “we assess damages to the freehold.”

“The Court will follow the proposition set forth in Norfolk, and award damages to Plaintiffs based on the damage to the freehold, that is, the diminution in market value of Plaintiff’s real estate as a result of Defendants’ damage to the trees.”

— Judge Robert J. Smith, Fairfax County Circuit Court

“The Court will follow the proposition set forth in Norfolk, and award damages to Plaintiffs based on the damage to the freehold, that is, the diminution in market value of Plaintiff’s real estate as a result of Defendants’ damage to the trees,” the judge said. “Because Virginia circuit courts have been willing to consider evidence of aesthetic loss in awarding damages for diminution in market value, the court grants weight to Plaintiffs’ expert real estate appraiser’s testimony and to Plaintiff Carniol’s testimony about the aesthetic value of the Trees as a sight and sound barrier.”

Smith awarded $25,000 in damages to the plaintiffs, representing the diminution in the real estate value, as well as $1,800 to repair a damaged pool fence, spa blower and pool cover, for a total recovery of $26,800.

The defendants alleged one count each of trespass and nuisance in a counterclaim, which Smith said had merit, but they failed to offer evidence that they suffered monetary damages. The court awarded nominal damages of $1 for each count.

“In total, the court awards Defendants $2.00 in nominal damages for their counterclaim, because while Defendants did suffer at the expense of Plaintiffs’ actions, Defendants failed to provide an evidentiary basis for the monetary damages requested,” Smith wrote.

Attorney comments

Tysons attorney John C. Altmiller, who represented the plaintiffs, noted that proving damages in tree cases can be challenging under existing law in Virginia.

“Trees located on residential properties rarely have any significant timber value, and it can be difficult to prove diminution in value of real estate based on the loss of trees that have purely aesthetic value,” he told Virginia Lawyers Weekly.

Arlington attorney Aristotelis A. Chronis, who represented the defendants, said it was “encouraging that the court ultimately followed long-standing Virginia case law in order to not award stumpage value for what were obviously nonmerchantable trees.”

Chronis told Virginia Lawyers Weekly the greatest concern was that the court “rewarded the plaintiffs for choosing on their own to remove five of the six trees prior to filing their initial suit” in this case.

“The court when awarding the full measure of damages which the plaintiffs were seeking which was calculated on the assumption of the complete absence of the five trees which plaintiffs removed, failed to take into account the mitigation of damages that should have occurred in this case by plaintiffs leaving the trees in place,” he said.