This was originally posted on the SGR Blog.
“Running bamboo” is an invasive species that is now barred by law in New York. But, as a recent case illustrates, the Court may still be called upon to determine legal liability for the aggressive plants’ encroachment on a neighboring property– where the bamboo was planted before the statutory ban came into effect.
Melinda and Sady Sultan sought damages relating to the spread of bamboo from the neighboring Shelter Island property of Loren and Lynn King. The Sultans sued to recover the cost to excavate and remove bamboo that had spread onto their property from next door and for the installation of a barrier along the property line separating the two properties and along a portion of the rear property line to prevent the future spread of bamboo onto their property. They also sought damages for loss of use of their property. The Sultans’ claims were based on a private nuisance claim, negligence, and trespass.
The Kings denied any legal responsibility to the Sultans under either statutory or common law. Argued that all of the claims were untimely. And that the Sultans failed to mitigate any damages that they might be entitled to either for remediation or for loss of use.
The core facts were not in dispute at the trial by the Court. The Sultans and the Kings are adjacent residentially improved property owners on East Brander Parkway, Shelter Island, New York. Both parties utilized their respective properties as “vacation homes” and maintained their principal residence at another address. Sometime in the early 1990s, the Kings elected to plant a grove of running bamboo on their property to serve as privacy screening between their property and the Sultans’ property.
At the time of the planting, it was lawful to plant running bamboo. In 2015, it became unlawful to plant running bamboo on any property in the State of New York. The maintenance and retention of existing bamboo groves, such as the Kings, remained lawful and continued to be lawful on Shelter Island.
There was no dispute that running bamboo is an invasive species of plant that can be expected to spread in all directions. The invasive nature of running bamboo has spurred legislative action in many jurisdictions. As noted, in New York State it is unlawful to plant running bamboo due to its noxious nature. Many local jurisdictions on Long Island have adopted laws that either prohibit the maintenance of running bamboo or impose regulations on properties where running bamboo is located so as to prevent the spread to neighboring properties. The regulations vary from outright prohibition of growing or maintaining running bamboo; requiring the removal of existing bamboo; to prohibiting the spread to neighboring properties or within a certain distance of property lines. Some also required remediation of encroachments of running bamboo onto neighboring properties. But Shelter Island had no laws regarding bamboo.
The central question before the Court was whether, in the absence of statutory or regulatory prohibitions or mandates, the Kings could be held liable to the Sultans for the spread of their running bamboo on any theory of the common law? And, if so, what was the appropriate remedy?
It was not in dispute that Kings’ bamboo had in fact spread to the property directly to the rear of both the Sultans’ and the Kings’ property as well as onto the Sultans’ land. On the King’s own property, the bamboo grove had not spread more than ten feet or so, according to the estimates of the witnesses testifying. The Kings had continuously employed the same landscaper who mowed and weeded the lawn area adjacent to their bamboo grove which the Kings claimed had been effective in limiting the above-ground growth of bamboo further into their property. The Kings were not sure if their landscaper used chemicals. There was no evidence as to the extent of bamboo growth below ground.
It also was undisputed that the Kings had done nothing to prevent the spread of the bamboo onto the Sultans’ or any other adjoining properties, excepting only the removal by their landscaper of some of the bamboo that had spread to the rear of the Kings’ property. Nothing was ever done by the landscaper, the Kings, or anyone else acting on their behalf. to prevent or stop the spread of bamboo onto the Sultans’ property or to eradicate the bamboo that had spread.
Sady Sultan testified that they had consistently employed a gardener who regularly mowed the lawn and maintained the landscaping on their property. In addition, the gardener was paid extra to clean bamboo leaves and debris that had fallen onto their property from over-hanging bamboo towards the rear of their property, particularly in the pool area. Until 2017, the Sultans both denied ever seeing bamboo growing in their yard.
All of the experts who testified agreed that the running bamboo was an invasive species that tended to spread in all directions. The Sultans testified that they first became aware of the spread of the running bamboo onto their property in the spring of 2017. There were numerous photos in evidence showing the bamboo growth at various times from 2017 when it was first observed, according to the Sultans, through 2020.
The Kings claimed that one or both of the Sultans previously advised them that bamboo had spread onto their property from the Kings’ property and that they had expended sums to maintain their property. The Sultans disputed they had made any such communication. They claimed that there were only previous complaints related to bamboo leaves/debris from overhanging bamboo falling into their rear yard in the area of their pool.
The Kings argued that when the bamboo spread onto the Sultans’ property and/or when the Sultans were aware of the spread was relevant to their statute of limitations defense to all claims. The Court, however, found that it was immaterial when the Sultans first learned about the spread of bamboo onto their property from the Kings’ property. In the Court’s opinion, the statute of limitations defenses raised by the Kings to the nuisance and trespass claims had no merit. Regarding the negligence claim, the Court credited the testimony of the Sultans and found the claim also to be timely.
The Sultans’ claims based upon nuisance and trespass were not barred by the statute of limitations because of the continuing nature of the condition.
The negligence cause of action accrued at the time of the injury. The statute began to run when the damages become apparent, not when subsequently discovered. The Sultans testified that the first time they became aware of the encroachment of bamboo growth spreading onto their property was in the spring of 2017. Since the underground spread of the bamboo system, as testified by the bamboo experts for both sides, unquestionably preceded the sprouting of bamboo above the soil line, the encroachment of the bamboo must have occurred at an earlier time. The experts testified in general terms as to the propensity of bamboo to spread. There was no testimony, opinion or otherwise, that established the time it took for the bamboo field to encroach upon the Sultans’ property. As result, there was insufficient proof to support the Kings’ request that the Court dismiss the negligence claim on statute of limitations grounds. Having plead the statute of limitations as an affirmative defense, the Kings had the burden of proof, which was not satisfied here. Accordingly, the Court found that the negligence claim was timely. In any event, the Court found the testimony of the Sultans that they first became aware of the bamboo encroachment onto their property in 2017 to be credible. The Kings’ and their landscaper testified that they did not observe any bamboo growing on the Sultans’ property until 2017.
The Kings also contended that the trespass claim was untimely because they obtained a prescriptive easement–since it was universally accepted, and the bamboo experts for both sides agreed, that the nature of running bamboo was that it would spread in all directions And, therefore, the spread of the bamboo onto their neighbors’ property must have occurred more than ten years prior to 2017 when the Sultans complained about the bamboo encroachment. The Kings argued that. albeit unknowingly to the Sultans, the trespass of the bamboo created a prescriptive easement in their favor.
To establish a prescriptive easement, however, a party must prove by clear and convincing evidence that the use of another’s real property was open, notorious, and continuous for a period of at least ten years. Here, the Kings failed to prove any of the elements of a prescriptive easement, much less by clear and convincing evidence. There was no evidence that any of the parties were aware of the encroachment of the bamboo, with particular reference to the side of the house abutting the Kings’ property and the front yard, prior to 2017. Further, encroachment of bamboo roots underground not visible hardly amounted to a “use” of real property or “open and notorious”. Simply stated, the undisputed facts, in this case, did not support the Kings’ claim of having acquired a prescriptive easement.
Liability for a private nuisance requires the invasion of the interest in the private use and enjoyment of land and such invasion is:(1) intentional and unreasonable; (2) negligent or reckless; or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities. The Court was required to determine whether the encroachment of the Kings’ bamboo onto the Sultans’ property was intentional and unreasonable or negligent or reckless. Any one of those three elements could form the basis for a nuisance claim. An invasion of another’s interest in the use and enjoyment of land is intentional when the actor either: (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially certain to result from his conduct.
The elements of a private nuisance cause of action are an interference: (1) substantial in nature; (2) intentional in origin; (3) unreasonable in character; (4) with a person’s property right to use and enjoy land; (5) caused by another’s conduct in acting or failing to act.
The Court found that the Sultans proved that the Kings were liable for damages based on their private nuisance claim. The credible and uncontradicted evidence established that the bamboo spread onto the Sultans’ was a substantial, intentional, unreasonable interference with the Sultans’ right to use and enjoy their property and that it was caused by the Kings’ failure to act to prevent the migration of the bamboo from their property onto their neighbors’ land.
The testimony of both of the bamboo experts was that running bamboo was a species of plant that spreads in all directions and that deliberate actions must be taken to prevent the spread. Running bamboo was now a prohibited plant in New York State due to its highly invasive characteristics and the extreme difficulty to eradicate bamboo that had spread. Again, experts for both sides agreed that it was necessary to dig up and remove all root structures to eradicate the growth and then to install impenetrable barriers to a certain depth to prevent the spread of bamboo in the future.
The Kings argued that running bamboo can be contained by regularly mowing and clipping sprouts before they grow into stalks. Through their testimony and the testimony of their landscaper and bamboo expert, they argued that this was how they limited the spread of the bamboo into the interior of their property. Their expert agreed that containing bamboo that would be effective but candidly testified that the method would not eradicate the bamboo. He also acknowledged that the bamboo growth and roots that had spread underneath the Sultans’ deck in the front of their house would have to be excavated to stop the spread and growth of the bamboo. He testified the practice of mowing and cutting above the surface bamboo growth was a means “to contain bamboo, not eradicate bamboo … The best solution is to have a barrier.” But admitted that excavation and root removal was the only means to contain the bamboo growth underneath the Sultans’ front deck. That admission was at odds with his opinion that simple mowing of above surface growth was an effective way to manage the spread of running bamboo and cast in doubt the believability of his opinions. Further, the Kings’ expert also acknowledged that he had used barriers dug into the ground to contain his own bamboo field decades ago. That testimony supported the opinion of the Sultans’ expert that the only effective means to eradicate and contain the bamboo was to excavate and remove the existing bamboo growth and to install a harrier. In fact it was his opinion that mowing and cutting above service growth only would spur underground horizontal root growth which, in the case of the Sultans’ property, could result in damage to the house foundation and other underground structures. The Sultans’ home was located relatively close to the Kings’ property line such that the underground growth posed a real threat, according to their expert.
The Kings’ landscaper and expert testified that the use of toxic pesticides would also be necessary to limit the growth of the bamboo above the ground surface. Significantly, none of the proof offered by the Kings regarding the mowing and clipping method would have eliminated the underground roots of the bamboo.
Since 2017, when they discovered the bamboo growth on their property, the Sultans’ had not cut or pruned the bamboo growth based upon the advice of their bamboo expert, who testified that the most effective way to limit the horizontal spread of the bamboo to the house foundation would be to allow it to grow vertically. That would slow down the horizontal spread of the bamboo.
The Kings argued that the Sultans should have mowed and cut the bamboo growth to stop the vertical growth. But they had no solution to the issue of underground root growth of the bamboo especially in regard to the area under the deck and the foundation of the house. Their expert testified that excavation would be required to address the bamboo underneath the deck.
Many local governments had enacted laws to regulate running bamboo. It was clearly recognized as a noxious plant that wreaks havoc if not properly contained. The evidence was undisputed that the Kings’ bamboo spread onto the Sultans’ property, And that the Kings made no effort to contain the bamboo before or after the bamboo spread onto the Sultans’ property had become apparent in 2017.
There also was no question that the planting of the bamboo was intentional on the part of the Kings who readily acknowledged that they had accepted their landscaper’s recommendation of running bamboo as a screening between the parties’ properties and paid to have it installed in and around 1990. It was not clear what part of the yard the original planting covered, but by 2017 it had spread to the property behind the Sultans’ and the Kings’ properties and onto the Sultans’ property, and to some extent the bamboo field had expanded inward on the Kings’ property. That growth carried on from 1990 to at least 2017 with the Kings doing nothing to abate the spread of the bamboo onto neighboring properties.
The Kings knew or should have known of the invasive nature of bamboo and the need to take substantial steps to contain the bamboo on their property. Certainly, they were aware of what needed to be done in 2017 when the Sultans’ voiced their objections and insisted that the bamboo be removed from their property and that a barrier be installed to contain the bamboo on the Kings’ property. But the Kings failed to take any steps to contain the bamboo on their property from 1990 to the present and continuing. At some point, the Kings’ landscaper removed bamboo plants from the lot directly adjacent to the Sultans’ and the Kings’ properties, without excavating to remove the bamboo root systems. The Kings’ landscaper also testified that he had excavated to remove bamboo and the root systems at other locations to eradicate running bamboo but was never requested or authorized by the Kings to do so with respect to the spread of the bamboo onto neighboring properties.
The Kings’ argument that mowing and clipping was an effective means to prevent the spread of bamboo was belied by the determination in 2015 to make it unlawful to plant running bamboo in the State of New York. And that many local jurisdictions had gone further to require existing bamboo fields to have setbacks from neighbor’s property and to require the removal of bamboo that had spread to other properties, was further evidence that the containment method offered by the Kings was not in fact an effective means to stop the spread of running bamboo and to eradicate the underground root systems. If running bamboo could effectively be eradicated by simple mowing and cutting. as argued by the Kings, then why was it outlawed by the State of New York? and why did so many local jurisdictions regulate and limit the spread and location of existing fields of running bamboo? As testified to by experts for both parties, the only effective means to eradicate bamboo was to excavate and completely remove the root systems, and the only effective means to stop the spread was to install a barrier shield to current standards.
The Court concluded that the spread of the Kings’ bamboo field onto the Sultans’ property was a substantial interference with the use and enjoyment of that property and therefore constituted a private nuisance.
The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission or a refusal to leave after permission had been granted but was thereafter withdrawn. Intent is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act.
The Kings intentionally planted the bamboo on their property. While not necessarily “immediate”, there was no question that the intrusion upon the Sultans’ property was inevitable given the fact that the Kings did nothing to prevent the spread of the bamboo. The nature of running bamboo was to spread in all directions unless containment action was taken, as testified by the experts for both sides. Accordingly, the Court found that the bamboo encroachment onto the Sultans’ property constituted a trespass, the Sultans having proven the elements of trespass by a preponderance of the evidence.
As to the claim of negligence: the Kings owed the Sultans a duty to exercise reasonable care in the maintenance and use of their property to prevent foreseeable injury that might occur on the adjoining property. Based upon the findings of fact, there was no question that the Kings failed to exercise reasonable care in the maintenance of their property by failing to take actions to prevent the spread of the bamboo onto the Sultans’ land. They acknowledged that they had not installed a harrier or taken any measures whatsoever to contain the bamboo on their property. By the testimony of the Kings own bamboo expert, it was inevitable that the bamboo would spread to adjoining properties, which it in fact did to the Sultans’ property and the adjoining property to their rear. Accordingly, the Court found that the Sultans had proved by a preponderance of the evidence that the Kings were negligent in failing to take timely action to prevent the spread of bamboo onto neighboring properties.
The Kings alleged that the Sultans’ failed to mitigate their damages by not mowing and clipping the bamboo that had spread onto their property. Relying on their bamboo expert, the Sultans did not mow and clip the bamboo because of the possibility that would spur new growth further into their property, where they were concerned about their home, water lines and the spread of bamboo further into their property. The Sultans were advised that the only means to eradicate the bamboo was by excavating and removing all roots coupled with the installation of an appropriate harrier to prevent encroachment. The Court agreed, based upon the opinion of the Sultans’ expert, whom the Court credited based upon the quality of his testimony. The Court also noted that the testimony of the Kings’ experts concurred in many respects with those conclusions. Thus, the Court found that the Sultans acted in good faith by accepting the recommendation of their bamboo expert instead of mowing and clipping.
The Court found that the Kings were responsible for the eradication of the bamboo that had spread onto the Sultans’ property and the installation of a barrier to prevent the spread in the future. The Court accepted the Sultans’ proof regarding the cost to perform these services. And awarded them the sum of $46,165.63. Additional damages were awarded as follows: $900 for dumpster; $5000.00 for hand labor to remove rhizomes the length of concrete wall and under the concrete wall; $800 for topsoil; $1,700.00 for landscape and shrub replacement to front and right side of the house; $600.00 to re-mulch; $250.00 for lawn repair; and $850.00 for rhizome removal from back concrete patio, For a total additional sum of $10,983.75 inclusive of sales tax and for a total award of $57,149.38.
The Sultans also claimed damages for loss of use of the property due to the extensive and substantial bamboo on their property. Their evidence consisted of the testimony of a recognized real estate expert as to the loss of rental value for 2017 through 2020. The measure of damages for loss of use resulting from temporary injury to real property is the decrease in rental value.
The Sultans’ expert testified that there was zero rental value due to the bamboo growth she observed in photos. The expert, however, never visited the property. The Court acknowledged that the expert was highly qualified to render rental value opinions for property located on Shelter Island. However, the Court found it difficult to accept her valuations without a personal visit to the property to observe the conditions both outside and inside the property for each of the seasons she rendered a loss of rental value opinion.
The Court accepted that it was likely that there was some loss of use of rental value based upon the spread and growth of the bamboo. But given the Court’s conclusion that the values ascribed by the real estate expert lacked a necessary foundation (on-site inspections), the Court found that the Sultans had not met their burden of proof as to the value of the loss of use of their real property causally connected to the spread of bamboo from the Kings’ land.