Damages awarded for ‘lollipopped’ trees

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Where contractors that defendants hired trespassed onto plaintiffs’ property and trimmed pine tree limbs, plaintiffs are entitled to $26,800 in damages. This represents the diminished value of the real estate after the trees were removed, and the aesthetic value of the trees “as a sight and sound barrier,” along with the cost to remove the damaged trees, and compensation for other damaged property.

Background

Plaintiffs and defendants share a common boundary on their residential property. Plaintiffs had six pine trees situated on their property near the boundary. Limbs from the trees extended over the boundary line.

Defendants hired contractors to trim the overhanging limbs. The contractors did so but also entered plaintiffs’ land and trimmed limbs so that the trees’ circumferences “were bare for several feet. In fact, the trees had been “lollipopped.1”

Footnote 1 (Judge Smith): “The parties used this term extensively. It means exactly what it implies — the trees looked like a giant lollipop. 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.”

“The damages from the contractors’ trespass that are listed by Plaintiffs include damage to pool equipment, other personal property, and the fence located exclusively on Plaintiffs’ property. In addition to the physical damage to their property, Plaintiffs allege loss of the enjoyment of their property.”

Plaintiff contacted an arborist, who opined that five of the six trees were damaged to the point that they should be removed. Plaintiff made arrangements to have the trees removed. In the interim, defendants’ arborist reported “that none of the trees had been damaged beyond viability[.]”

Plaintiffs went ahead with the tree removal. During the process plaintiffs or their contractor “caused damage to a support column of Defendants’ back deck, the patio underneath the deck, and a sprinkler head on Defendants’ property.”

Plaintiffs sued, alleging trespass by defendants or their agents. Defendants counterclaimed for trespass and nuisance.”

Plaintiffs sought the trees’ stumpage value, which, plaintiffs claimed was $45,800. In the alternative, they requested “the diminution in the market value of Plaintiffs’ property in the amount of $25,000.

“Plaintiffs also alleged they are entitled to $12,800 in other damages for things such as the cost to remove the damaged trees ($11,000); the cost to repair their damaged pool fence ($1,200); the cost to replace their damaged spa blower ($300), and cost to replace their damaged pool cover ($300).

Defendants sought damages for trespass and nuisance, alleging “that Plaintiffs’ failure to prevent the encroachments of the trees’ branches on their property constituted a continuing nuisance for which Defendants suffered damages and incurred costs.” Defendants asked for $29,895 in damages.

Defendants’ trespass

“Defendants’ contractors entered onto Plaintiffs’ property without permission and interfered with Plaintiffs’ possessory interest in the land that they owned. Defendants’ actions clearly constituted trespass under Virginia law. …

“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. However, Defendants did cross the line, did trespass, and did cause serious damage to the trees.”

Defendants argue that under the “Restatement of Torts, Second, any trespass by Defendants’ contractors was justified.” But under the Restatement, defendants had to first demand that plaintiffs abate the nuisance, which defendants did not do.

In a comment, the Restatement provides that the privilege of entering another’s land “exists only where in an emergency the actor enters land for the purpose of protecting himself or the possessor of the land or a third person or the land or chattels of any such persons. …

“Defendants themselves acknowledged at trial that they lived with this nuisance for five and a half years. This testimony suggests that the encroaching trees did not put Defendants in an emergency situation, and their trespass did not occur at a reasonable time.”

The court has “found no Virginia court that expressly permitted actors in cases of encroaching vegetation to trespass in their execution of self-help.”

Plaintiffs’ damages

“The next issue before the Court is what damages, if any, shall be awarded to Plaintiffs for their loss. Plaintiffs have asked for damages for the stumpage value of the trees or in the alternative, for the diminution in the market value of the real estate.

“There is no shortage of case law on this issue of damages, and the cases seem to be in conflict.

“Ultimately, it can be said that in Virginia, the correct measure of damages for nonmerchantable trees is the diminution in the market value of the property. …

“[T]he Court easily can conclude that these trees were not nurtured for purposes of timber and all evidence leads to the inescapable conclusion that the value of these trees was their aesthetic value.

“It would be unjust … to award Plaintiffs such a large sum of money, $45,800 specifically, for the stumpage value of the trees that Plaintiffs could have never expected to see had this tortious act not been committed by Defendants. Therefore, I conclude that these trees were nonmerchantable. …

“The Court will … award damages to Plaintiffs based on the damage to the freehold, that is, the diminution in market value of Plaintiffs’ real estate as a result of Defendants’ damage to the trees.

“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.

“Accordingly, the Court awards $25,000 in damages to Plaintiffs for the diminution in market value of the real estate; the Court finds this value to sufficiently incorporate the trees’ aesthetic value. Additionally, the Court awards Plaintiffs $1,800 in damages for the cost to repair their damaged pool fence ($1,200), the cost to replace their damaged spa blower ($300), and the cost to replace their damaged pool cover ($300). In total, the Court awards plaintiffs $26,800 in damages for their trespass claim.”

Defendants’ counterclaim

Defendants have sought damages for trespass and nuisance. But they have not explained how they arrived at the amount of their damages. Therefore, the court awards nominal damages of $1 for each count.

Carniol v. Nayak, et al., CL-2021-642, Aug. 4, 2023. In the Fairfax County Circuit Court (Smith). John C. Altmiller, Leonard C. Tengco for plaintiffs. Aristotelis A. Chronis for defendants. VLW 023-8-053, 10 pp.