A Row of Trees can be a Nuisance

            “Every body 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.” (Blake, The Complete Writings of William Blake (1957) p. 793.)

This quote is the opening sentence in a California legal case known as Handley v. Wilson (2002) 97 Cal. App. 4th 1301.  By quoting William Blake, the Court of Appeal introduced an appellate opinion concerning a legal principle concerning something known as a  “spite fence.”

It seems that a property owner in Northern California began building a two-story log cabin on her property.  In response, a neighboring property owner planted a row of evergreen trees near the property line.  The owner of the log cabin became concerned that the newly planted trees would eventually block her view of Mount Shasta.  As a result, the owner of the log cabin filed a lawsuit in which she asked that the trees be removed.

A request made to a court that a property owner be ordered to remove trees planted on their own property is a significant thing.  Such a request asks a Court to order that a property owner change their use of their property solely because a neighbor doesn’t like it.  California law generally recognizes and upholds established property rights.  But this is something unusual, because in this case one neighbor was asking a court to order another neighbor to change something on their property that otherwise appeared to be a proper legal use of their own property.  The trees that were planted included spruce and Leland cypress trees, which are specifically designed to serve as screening barriers and windbreaks.  Some of the trees were planted within five feet of the property line, and some were within ten feet of the property line, but most of them were more than ten feet from the property line.  The court didn’t say how many trees were planted, but it’s clear from the court’s opinion that there were more than seventeen of them.

The legal point at issue in the appeal was whether or not a row of trees can constitute a “spite fence.”  This may not be widely know, but California law includes a statute that is commonly known as the “spite fence” statute.  It is codified at Civil Code section 841.4.  That section provides “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.”  The law further provides that if such a “nuisance” causes injury to the comfort or enjoyment of property, then in an appropriate case it may be stopped, or “abated.”

This is a significant legal point because it provides that in certain circumstances, one neighbor can bring a lawsuit to require another neighbor to discontinue using their own property for a use that may otherwise appear to be completely legal and proper.  If one neighbor builds either a “fence” or a “structure” on their own property that is “unnecessarily” over 10 feet high, and if the purpose of that fence or “structure” is to annoy a neighbor, then such a fence or structure may, in appropriate circumstances, be deemed to be a “spite fence” and the owner of it may be required to remove it or reduce its height.

An actual determination as to whether or not a fence, structure, row of trees or other barrier may constitute a “spite fence” involves legal analysis, and this series of articles is not an appropriate basis for making any decisions regarding nuisance or “spite fence” issues. In addition, certain building codes or ordinances may control the allowable height of certain structures, but those considerations are not included in this series of articles. Persons with specific situations that may involve a “spite fence” or other nuisance should consult competent legal counsel.

Copyright 2017 ROBERT B. JACOBS