## Facts

- Richard A. Fancher and Joseph B. Fagella owned adjoining townhouses in Fairfax County, Virginia, with Fagella’s lot at a higher elevation supported by a retaining wall along the boundary.
- A large sweet gum tree stood on Fagella’s property approximately two to three feet from the common wall.
- Fancher alleged the tree’s roots and branches encroached onto his property and caused structural and utility damage, including displacement and damage to the retaining wall and patio pavers, blockage of sewer and water pipes, and impairment of his home’s foundation.
- Fancher also alleged overhanging branches deposited leaves and debris on his roof and gutters.
- Fancher asserted that self-help efforts (repairs and trimming) were ineffective because the encroachment and damage were continuing and increasing.
- Fancher sought damages and an injunction compelling removal of the tree and its roots.

## Issues

1. Whether an adjoining landowner is limited to self-help for encroaching roots and branches, or may obtain injunctive relief compelling removal when the encroachment causes actual, substantial harm or poses an imminent risk of such harm.
2. Whether the trial court erred by striking the request for injunctive relief as a matter of law based on prior Virginia precedent.

## Decision

- The Supreme Court of Virginia reversed the order striking Fancher’s request for injunctive relief and remanded.
- The Court rejected the categorical rule that limited an injured landowner to self-help for encroaching vegetation.
- The Court held that encroaching vegetation may constitute a private nuisance when it causes actual, material harm or poses an imminent danger of such harm.
- The Court held that, where such harm is shown, traditional remedies are available, including damages and equitable relief such as an injunction requiring removal.
- The Court abandoned the restrictive “Virginia Rule” derived from earlier precedent and adopted a modified nuisance standard suited to modern urban and suburban conditions.

## Legal Principles

- Encroaching trees and plants are not per se nuisances, but may become a private nuisance when they cause actual, material damage to adjoining property or pose an imminent danger of such damage.
- When a private nuisance is established from encroaching vegetation, the injured landowner is not confined to self-help; courts may award damages and may grant injunctive relief where appropriate.
- Whether injunctive relief should issue depends on equitable considerations and proof of harm or imminent risk; a request for an injunction cannot be barred categorically when substantial harm is alleged.

## Conclusion

Virginia law allows nuisance-based claims and potential injunctive relief for encroaching vegetation that causes actual, material harm or presents an imminent danger of such harm, and a court may consider ordering removal rather than limiting the injured landowner to self-help.


Fancher v. Fagella, 274 Va. 549, 650 S.E.2d 519 (Va. 2007)