In Kornbleuth v. Westover, (A-71-18/081898) (Decided March 11, 2020), the Supreme Court of New Jersey held property owners who filed a lawsuit against their neighbors over the destruction of bamboo “fence” were required to show their property value was diminished as a result.
Facts of Kornbleuth v. Westover
Plaintiffs Joseph and Donna Kornbleuth’s rear property line is contiguous to that of defendants Thomas and Betsy Westover. Their shared property line is approximately 100 feet long and was marked by a bamboo barrier 20 feet tall by 30 feet wide. That “bamboo fence” provided the Kornbleuths “complete visual privacy” from the Westovers.
Over time, bamboo spread to the Westovers’ property. The Westovers requested the Kornbleuths’ permission to have contractors remove all bamboo from both properties and replace it with a less invasive natural barrier. The Kornbleuths refused to grant permission. Later, when neither party was home, contractors hired by the Westovers removed all the bamboo from both properties.
The Kornbleuths filed suit against the Westovers for trespass and conversion, alleging that the “bamboo fence” had provided privacy. The Kornbleuths submitted expert reports projecting bamboo restoration costs of between about $17,000 and $41,000. Neither those reports nor any other evidence provided information about the market value of the Kornbleuths’ property or the diminution in that property’s value as a result of the removal of the bamboo fence.
The Westovers moved for summary judgment. The Kornbleuths conceded that they had not produced evidence of diminution in value but argued their expert’s reports supported their elected remedy of restoration costs. The trial judge granted the Westovers’ motion and denied the Kornbleuths’ subsequent motion for reconsideration. The Kornbleuths appealed. The Appellate held the trial court did not abuse its discretion in denying the motion because plaintiffs failed to demonstrate that the decision was palpably incorrect.
NJ Supreme Court’s Decision in Kornbleuth v. Westover
By a vote of 6-3, the New Jersey Supreme Court held that there was no abuse of discretion with respect to the denial of reconsideration. According to the court, property owners have to show their property values were damaged by their neighbors’ trespasses in order to bring a lawsuit.
In support of its decision, the court cited Section 929 of the Restatement (Second) of Torts (Restatement), which provides the framework for determining plaintiffs’ damages for trespass to land. The Restatement contemplates two possible damages valuations under section 929(1)(a): (1) if the cost of restoring the land to its original condition is not proportionate to the diminution in the value of the land and there is no reason personal to the owner for restoring it to its original condition, damages are limited to the diminution in value; and (2) if the cost of restoring the land to its original condition is not proportionate to the diminution in the value of the land but there is a reason personal to the owner for restoring the land, damages are not limited to the diminution in the value of the land.
The court emphasized that the Restatement limits the damages recoverable for trespass to land when there is no reason personal to the owner for restoring the property to its original condition. It also noted that the Appellate Division considered diminution of value and restoration costs as compensation for trespassory tree removal in Mosteller v. Naiman, 416 N.J. Super. 632 (App. Div. 2010), and Huber v. Serpico, 71 N.J. Super. 329 (App. Div. 1962). In Huber, the appeals court found the touchstone to be reasonableness. In Mosteller, the Appellate Division rejected claims that certain foliage had peculiar value warranting damages for trespass beyond diminution in value. The court went on to conclude:
When restoration costs are disproportionate to diminution of value and there is no reason personal to the owner for restoring the property to its original condition, restoration costs are not reasonable. Even when there is a reason personal to the owner for restoring the property to its original condition, the upper limit of damages is “reasonableness.” In short, whether restoration costs may be recovered is not an election of the aggrieved party but is dependent upon a showing that such damages are reasonable.
Based on the foregoing, the New Jersey Supreme Court found that a general interest in privacy and vague assertions of the aesthetic worth of bamboo as opposed to any other natural barrier do not establish value personal to the owner. It wrote:
Plaintiffs’ assertions of peculiar value do not resemble those set forth in Huber — a diverse grove of some fifty colorful seventy- to eighty-five-year-old trees. Nor do they resemble those described in the Restatement commentary — a “building such as a homestead [that] is used for a purpose personal to the owner[,]” or a “garden [that] has been maintained in a city in connection with a dwelling house.” A general interest in privacy and vague assertions of the aesthetic worth of bamboo as opposed to any other natural barrier do not establish value personal to the owner.
Justice Jaynee LaVecchia authored a dissent, which was joined by Justices Albin and Timpone. The dissenters argued that the majority’s decision overextends the holdings and reasoning of Mosteller and Huber, altering New Jersey law and making it less protective of residential property owners. “The majority’s approach makes it virtually impossible for a residential property owner to secure relief from a trespassing neighbor who, in pique, decides to come onto the owner’s property and remove bushes, trees, or other landscaping or natural growth that the neighbor does not like,” Justice LaVecchia wrote.