The Supreme Court's recent 4-3 decision in Kornbleuth v Westover clarifies the law of trespass in a way that, in our opinion, diminishes the protection of real property against intrusion that causes permanent damage. The case involved a living bamboo fence that had spread from plaintiffs' property to defendant's. Defendant hired a contractor who uprooted all the bamboo on both properties. Opposing defendant's motion for summary judgment, plaintiffs presented evidence that the bamboo fence provided complete privacy and presented evidence of the cost to restore it, but they did not present evidence of the diminished value of their property with the fence gone. The trial court granted summary judgment of dismissal, holding that the proper measure of damages was diminished value. Plaintiffs' motion for reconsideration was denied, and the denial affirmed by the Appellate Division. The Supreme Court affirmed.

Relying on the Restatement (Second) of Torts, the four Justice majority noted that unless there is a "reason personal to the owner" of real property, "the cost of replacing the land to its original condition is disproportionate to the diminution in the value of the land caused by trespass…damages are measured only by the difference between the value of the land before and after the harm." If 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," but they must be reasonable. Expert testimony had put restoration cost between $17,000 and $41,000. After discussing precedent, the court noted that "New Jersey cases have historically rejected claims that certain foliage had peculiar value warranting damages for trespass beyond diminution in [property] value." It emphasized that plaintiffs elected the cost of restoration as their remedy, and never sought to show any diminution of value losses incident to the removal, and "never alleged or offered any losses incident to the removal of the bamboo," or "nominal damages" despite the opportunity to do so. They did assert a personal reason for restoring the property—the need for privacy and aesthetic value. But the court held: "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… 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… 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." Moreover, proof of the "proportionality and reasonableness of restoration costs could not be determined without evidence of diminished value or some similarly helpful yardstick for comparison." The majority therefore, held that the fact finder could not determine whether restoration costs would be "reasonable."

We appreciate the fact that another type of fence could protect the plaintiffs' privacy interests and that the plaintiffs must show that the cost of restoration is reasonable, but we agree with the three members of the court in dissent that the majority opinion "denies fair compensation to a property owner whose trees or landscaping are destroyed by a trespasser [and] cheapens the worth of the trees and landscaping both in their aesthetic and monetary value." The plaintiffs asserted that the bamboo provided a "privacy screen " and they "love[d]" the backyard and its "privacy." We agree with Justice LaVecchia that "[t]he 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." Discussing cases that have struggled with similar issues in other states, the dissent settled on a jurisprudence that allows the injured property owner "to present evidence of damages in the form or restoration damages and, to the extent that reduction in the overall value of the property serves as a cap on the reasonableness of damages, the burden is on the alleged tortfeasor to come forward to show that the requested restoration cost is unreasonable." As the dissent concluded, "When it comes to injury to property on which a person resides, diminution-in-value damages will, only in the most extreme case, allow for recovery of damages caused by an intentional invasion."

We believe that the dissent has the better of the argument because it recognizes that the core value of the law of trespass is to protect the owner's secure possession and control of his or her own land against deliberate intrusion. The cost to restore the status quo ante should be the preferred remedy, with diminution of value limited to those cases where restoration of permanent damage is either impracticable or its cost grossly disproportionate, such as where structures have been erected. Compensation for diminished value amounts to an involuntary taking. In this case, moreover we do not believe that a sum between $17,000 and $41,000 is grossly disproportionate damages in a dispute between neighboring homeowners. If the fault lay in an error by defendants' contractor, rather than defendants' instructions, defendants can recover over in a third-party claim.

While we do not believe Kornbleuth will encourage many people to enter neighbors' property to destroy portions they don't like, even when there is no overall diminution of the value of the property, we do see an injustice to the injured neighbor when it does happen, intentionally or by accident, and destroys their privacy or enjoyment.