REAL ESTATE /TORT LITIGATION: CAN YOUR OBSTRUCTED VIEW CAUSED BY YOUR NEIGHBOR'S TREES EVIDENCE SPITEFULLNESS AND ENTITLE YOU TO DAMAGES?

BY ROBERT J. WORTH, ESQ. © 2002

Most of us enjoy the trees around us and recognize their value to the environment and even their aesthetic beauty. But, what rights do property owners who specifically purchase an expensive hillside view home at a premium have? Do homeowners who purchase a view home so that the view can be enjoyed and then are confronted with a neighbor who has planted a row of trees, maintained in a "natural" condition, which are not pruned and trimmed and thus obstruct their view have any rights? Is the property owner whose trees obstruct another owner's view liable for a private nuisance and violating the quiet enjoyment of the neighbor's home and its view for which damages can be recovered?

The answer is that if your view is obstructed by your neighbor's trees, you may have some rights. There is a law in California casually referred to as the California spite fence statute (Civil Code § 841.4), which specifically declares that "…any fence or other structure in the nature of a fence" that unnecessarily exceeds 10 feet in height and is maliciously erected or maintained for the purpose of annoying a neighbor is a private nuisance.

In the recent California Court of Appeal Third Appellate District case of WENDY WILSON, et al. v. LEON HANDLEY, et al. (April 30, 2002) Daily Journal D.A.R. 4659, the Court determined that the issue presented is whether a row of trees planted parallel to a property line can be a fence or other structure in the nature of a fence within the meaning of the spite fence statue. The trial court concluded that, "at least when they grow naturally and are not pruned or trimmed," a row of trees is not within the scope of the spite fence statute because "[t]rees are neither built [n]or constructed." However, the Court of Appeals disagreed concluding at page 4659, that "…Because the spite fence statute must be liberally construed, we conclude a row of trees can be a 'fence or other structure in the nature of a fence' and thus can be a spite fence under section 841.4.

The plaintiffs in the Wilson case contended that the defendants planted a row of trees parallel to a common boundary line, which if allowed to grow unabated, would eventually block the plaintiffs' views and thus, may be considered a "fence or other structure in the nature of a fence" within the meaning of the spite fence statute.

The issue according to the Court "…is not whether a single growing tree can be a structure, but whether a row of growing trees can be a structure. We conclude that it can."

The Court broadly interpreted the term "structure" as "something arranged in a definite pattern of organization", citing Merriam-Webster's Collegiate Dictionary, (10th ed. 2000), p. 1163, col.2) and decided that the HANDLEYS 17 trees, some of which where within five feet of the property line and some over 10 feet away case constituted a structure. The Court also interpreted that "…to 'construct' something is to 'put together [its] constituent parts… in their proper place and order.' (Webster's New International Dict. (2d. ed. 1938) p.572, col. 3.)…" The Court determined that because trees placed in a row can be "constructed" that a row of trees can be a "structure".

The next question that this Court addressed is whether a row of trees can be a structure "in the nature of a fence." According to the Court's analysis of meaning of "fence", it "…can also be a 'structure…erected… to separate two contiguous estates'…or 'a barrier intended …to mark a boundary' (Merriam-Webster's Collegiate Dict. (10th ed. 2000) p. 428, col.1)…" The Court concluded that in light of the spite fence statute, "…these latter definitions more accurately express what constitutes a 'fence or other structure in the nature of a fence' within the meaning of section 841.4…"

Given the purpose of the spite fence statute, and the Appellate Court's obligation to liberally construe the section 841.4, it concluded that a row of trees planted on or near the boundary line between to adjoining parcels of land can qualify as a "fence or other structure in the nature of a fence." Further, this statute expresses the judgment of the state legislature, that a structure built to separate or mark the boundary between two adjoining land parcels does not even need to be over 10 feet in height to serve such a purpose. The Wilson Court at page 4662 emphasized that if a fence or fence-like structure serves another concurrent purpose then the height above 10 feet may not be a spite fence and may be justified based upon that other concurrent 'dominant' purpose, citing Rideout v. Knox, 148 Mass. 368 [19 N.E. at p. 392]. Based upon the basic purpose of spite fence statute Rideout case, the Court concluded at page 4662, that the intent to annoy one's neighbor does not have to be the sole purpose for the planting and maintenance of a 10-foot high tree row fence. However, it certainly must be the property owner's dominant or primary purpose and motivation. Absent a justified purpose for planting a row trees which "unnecessarily" exceed 10 feet in height and intended solely to annoy the neighbor a court could reasonably conclude that the existence of the fence is in violation of the statute and that such a fence which "meets certain requirements 'is a private nuisance…"

If the neighbor's (in this case the Handleys') dominant purpose in planting the row of evergreen trees along their property line was to annoy the plaintiff neighbors then the question of malice within the statute is met. However, if the court finds that the owner's purpose is other than to annoy, i.e., to beautify the property or to protect their privacy from a neighbor's adjacent two story home, the malice element would not be satisfied. However, this is a factual decision for a jury to determine and not for a court to decide.

The Appellate Court in this case concluded that it was an error for the trial court to conclude that a row of trees in their natural state can never be a "fence or other structure in the nature of a fence" within the meaning of section 841.4 and thus, the trees may be a spite fence entitling the party who is deprived of his or her view to private nuisance damages pursuant to that statute.

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