What is the burden of proving intentional damage to a tree?

In order for the plaintiffs to prevail in an action in trespass their burden extends beyond proof of an invasion of his right to exclusive possession of his land to proof that such invasion or intrusion is the result of an act either intentionally done or so negligently done that such intent will be presumed. The trespass may not be based on a mere nonfeasance or an omission to perform a duty. Loggia v. Grobe, 128 Misc2d 973, 491 NYS2d 973 [Suffolk County Dist Court 1985]. Here, there is no proof whatsoever of an intentional intrusion or that defendants were even aware of tree's intrusion prior to notification by plaintiff of the alleged damages.

In order to sustain a cause of action for nuisance with regard to trees not noxious, poisonous, decayed, or dangerously unsound, a plaintiff must establish that the overhanging branches or encroaching roots are causing "sensible damage" i.e., damage not simply nominal in form but rather damage "a sensible person if subjected to ... would find injurious" (Countryman v. Lighthill, 24 Hun 405, 407 [1881] [berry bushes suffering from shade caused by overhanging branches did not satisfy sensible damage requirement. Otherwise, plaintiff's remedy is limited to self-help - the precise remedy plaintiffs' chose.