Nichols v. Vico Constr. Corp., 2018 Va. Cir. LEXIS 28 (Va. Cir. City of Chesapeake Mar. 1, 2018)
Either Hanbury Manor, LLC or Hanbury Manor Construction, LLC (collectively “Hanbury”) hired Vico Construction Corporation (“Vico”) to construct a drainage ditch between the Berskshire Estate subdivision and the Hanbury Manor subdivision. The drainage ditch crossed land owned by Thomas and Connie Nichols (the “Nichols”), upon which the City of Chesapeake has a drainage easement. During the construction of the drainage ditch, Vico allegedly cut down trees situated on the Nichols’ land and belonging the Nichols. On September 19, 2016, the Nichols sent Vico a notice of trespass and a demand for replacement of the trees. The court denied the Nichols motion for default judgment against Hanbury Manor, LLC because the Nichols’ service on a non-designated, non-member employee was not sufficient to give the limited liability company notice of the pendency of the action.
The court denied Vico’s plea in bar, which asserted that the Nichols’ claim for recovery was barred as untimely. Virginia Code § 55-332 provides a procedure, by which a landowner can appoint a timber estimator within 30 days of discovering a trespass and the identity of the trespasser. Because Va. Code § 55-332 only provides a procedure for determining damages and is in addition to all other remedies available by law, the Nichols’ claims were not barred by Va. Code § 55-332 even if Vico was correct in alleging that notice was not given to Vico within 30 days from when the Nichols discovered that the trees had been cut.
The court also denied Vico’s demurrer to the Nichols’ negligence, trespass, and nuisance causes of action. As to the negligence claim, the court inferred that the Nichols could have put Vico and the City of Chesapeake on notice that Vico’s cutting was not authorized and could have settled the dispute prior to incurring any damages if the Nichols had 30 days advance notice of the impact on their property. The court concluded that the Nichols had alleged a cause of action for trespass because the Nichols alleged that Vico exceeded the City of Chesapeake’s easement and that acting under a claim of right does not act as a bar to damages for common law trespass. Finally, the court held that the level of discomfort a reasonable person would find significant was an issue for the fact finder and not a proper basis for a demurrer regarding the Nichols’ nuisance claim.
