Fences and Trees Can be Annoying

            California Civil Code section 841.4 concerns “spite fences.”  The statute provides, in part, that if a “fence” or other “structure” is unnecessarily over 10 feet high, then if the purpose of building or maintaining that “fence” or other “structure” is to annoy a neighbor, then a court may order that the “fence” or “structure” be removed, taken down, or lowered, or may order other appropriate relief.

In one case filed in Northern California a property owner built a two-story log cabin on their property, and a neighboring property owner planted over 17 trees in a row that would eventually block the cabin owner’s view of Mount Shasta. The case is reported as Wilson v. Handley (2002) 97 Cal. App. 4th 1301.  The cabin owner filed a suit which claimed that the row of trees constituted a “spite fence.” This article discusses the court’s opinion about whether or not a row of planted trees can constitute a “spite fence.”

In this legal case, the court noted that in an appropriate situation the owner of a “spite fence” could be required to remove or lower a “spite fence.”  A “spite fence” is a “fence” or other structure “in the nature of a fence” which is “unnecessarily” over 10 feet high and which was built or maintained for the purpose of annoying a neighbor.  The tree owner in this case argued that the statute didn’t apply because a tree is not a “fence” or another “structure” that is in the “nature” of a “fence.”

Under American law, it was said in a legal case decided in 1889 that “a man has a right to build a fence on his own land as high as he pleases, however much it may obstruct his neighbor’s light and air.”  Pursuant to this principle, Charles Crocker sought to purchase an entire block on San Francisco’s Nob Hill in the 1870’s on which to build a mansion. (Charles Crocker was a California railroad executive who played a key role, along with Mark Hopkins and others, in the development of the railroad in California and the western United States.) As noted by the Court, a local undertaker named Yung refused to sell his small lot on Nob Hill to Crocker, so Crocker bought the remainder of the block and built a fence 40 feet high on his property around Yung’s lot.  Yung thereafter sold his property and Crocker obtained the entire city block of land.

The Court noted that in the 1880’s, courts and legislatures began holding that excessively high fences which were built to annoy or spite a neighbor could be considered a private nuisance and could be “abated” (which meant that the Court could order the landowner to stop, or discontinue, these nuisances).  The Court ultimately concluded that if a fence, structure, or “row of trees” is unnecessarily over 10 feet high, and if the dominant purpose of such fence, structure, or trees is to annoy or spite a neighbor, then in an appropriate situation a court can order the fence, structure or trees to be modified or the “nuisance” to be  “abated.”

Following the decision in the case of Wilson v. Handley in 2002, a different California court also decided that a row of trees can constitute a “spite fence.”  However, this second court also noted that in order to be “abated,” a “spite fence” or a “row of trees” must also have injured the neighbor in his “comfort or the enjoyment” of his property.  This case is cited as  Vanderpol v. Starr (2011) 194 Cal. App. 4th 385.

An actual determination as to whether or not a fence, structure, row of trees or other barrier may constitute a “spite fence” involves analysis of legal considerations, and persons with specific situations that may involve a “spite fence” should consult competent legal counsel. Modern land use law incorporates many legal principles in addition to nuisance principles, and landowners or prospective landowners with any land use issues should consult competent legal counsel. Further, this series of articles is not a complete treatment of nuisance law and should not be relied on in any given situation. Landowners or prospective landowners with potential nuisance issues should consult competent legal counsel.

Copyright 2017 ROBERT B. JACOBS