EVERGREEN TREES AS A SPITE FENCE?

 

Everybody does not see alike . . . .
The tree which moves some to tears of joy
is in the Eyes of others
only a Green thing that stands in the way.

The Complete Writings of
William Blake (1957)

Evergreen trees are apparently plentiful and eagerly planted in the City of Eureka, located in Siskiyou County, California.  In a recent private nuisance action arising out of that fair town, the truth of William Blake’s observation was unfortunately demonstrated.

When one neighbor began building a two-story log house on her property, the adjoining neighbor planted a row of evergreen trees along the property line.  A landscape contractor was hired to plant these trees within five feet of the property line and others within 10 feet.  The neighbor constructing the two-story log house, afraid that the trees would block her views of Mt. Shasta, sued her adjoining tree planting neighbor to require him to remove the trees.

The plaintiff relied in part on a spite fence statute in California [California Civil Code §841.4] which provides, in part, as follows:

“Any fence or other structure in the nature of  a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.”

A row of trees is obviously not a fence, but can it be considered a “structure” under the spite fence statute?

The trial court concluded that a row of trees, “at least when they grow naturally and are not pruned or trimmed,” is not within the scope of the spite fence statute since trees are not built nor constructed.  “They grow,” said the trial court.

The plaintiff was unhappy with the verdict of the trial court and took an appeal to the California Court of Appeal which reviewed the facts and law of the case.

The Court of Appeal, turning to Webster’s Collegiate Dictionary, noted that a “structure,” defined broadly, is “something arranged in a definite pattern of organization.”  Consequently, under such a broad definition, the Court of Appeal determined that a row of trees, “arranged in a line by a person who planted them, could easily constitute a “structure.”

The Court of Appeal thus disagreed with the trial court and concluded that a row of trees, under certain circumstances, might constitute a spite fence.  Paraphrasing a famous poem, the Court of Appeal observed that although only God can construct a tree,^[1] “any enterprising individual with a shovel and some saplings can construct a row of trees by simply planting the saplings in their proper place and order -– in order words, in a row.”  The “certain circumstances” which elevate a row of trees to a spite fence is not that the trees will obstruct a neighbor’s view, “but that it does so . . . for the malicious purpose of annoyance.”

Consequently, the Court of Appeal instructed the trial court to determine whether the row of evergreen trees were planted with the purpose of annoying the plaintiff.  In guiding the trial court, the Court of Appeal stated, with regard to the subject of annoyance,

“If the trial court finds [he] planted the trees primarily for reasons other than to annoy plaintiff –- for example, to ‘beautify’ [his] property or to protect [his] privacy from the two-story log house looming next door . . . then annoyance was not the dominant purpose of the row of trees and the ‘malice’ element of [the spite fence statute] is not satisfied.  On the other hand, if the court finds [that he] planted the trees primarily to annoy plaintiff, and other purposes such as aesthetics and privacy, if any, were only subordinate to the dominant purpose of annoyance, then the ‘malice’ element has been satisfied.”

The moral of the story?  Notwithstanding the reverence for trees held by Kilmer, others apparently agree with Blake and view a tree as merely a thing that stands in the way!

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^[1] Kilmer, “Trees.”

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from The Journal
Myles M. Mattenson © 2006