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Fancher v. Fagella

Citation. 60 U.S. 393, 15 L. Ed. 691, 1856 U.S. 19 HOW 393.
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Brief Fact Summary.

A tree on Fagella’s property is causing damage to Fancher’s property. Fancher wants Fagella to remove the tree and pay for the damages.

Synopsis of Rule of Law.

Encroaching trees and plants will only be considered a nuisance if they cause actual harm or pose imminent harm to adjoining properties.


Fancher and Fagella are neighbors. Fagella’s property is higher than Fanchers property. There is a masonry wall that separates the two properties. On Fagella’s property that is a large tree. The roots of the tree cause damage to the wall, the underground water, sewer pipes, and to the bricked that lay on the floor of Fancher’s patio. The branches leave debris on the roof and rain gutters causing problems. Fancher tried self-help remedies by repairing everything but the problem is more than he is willing to handle. Fancher brought an action requesting the court order Fagella to remove the tree and pay Fancher for the damages to his property.


Whether an encroaching tree that causes harm to someone else property is considered a nuisance that would require the owner to remove that tree and pay damages to the other owner.


Yes. When an encroaching tree only cast shade, drops flowers, or fruit on adjoining property that is not considered a nuisance. However when that tree causes actual damage to the adjoining property then it will be considered a nuisance. A person has a right to use and enjoyment of his property. When something infringes upon that right it is considered a nuisance and damages will follow. If there is no actual damage to the property, the only remedy is self-help. If there is damage from roots and branches the courts treat the tree as trespassing upon another person’s property which is actionable. The court analyzed many different jurisdictional treatments of this rule and decided the self-help remedy is still good law, but the owner of the tree will be responsible for cutting down encroaching branches and roots if it cause damage to his neighbor.


 Most case law in this area covers a time when properties where not that condensed and agriculture was an important part of each home owners use of the land. That is not the case anymore. When a tree causes actual harm to someone’s property that person has a right for an equitable remedy of removal of the tree to prevent further damage.

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