Trees as a Nuisance

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 week’s article continues the discussion of 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.”

The court specifically addressed the argument about whether or not a “tree” can be a “structure” by referring to the famous poem “Trees” by the American poet Alfred Joyce Kilmer which states that only God can make a tree.  But after referring to this poem and noting that only God can construct a tree, the court notes that “any enterprising individual with a shovel and some saplings can construct a row of trees.”   The court concludes that a “row” of trees can be a structure, because according to Webster’s Collegiate Dictionary, a “structure” is “something arranged in a definite pattern of organization.”  The court observed that a “row of trees” could be a “structure” in the “nature of a fence” because according to Webster’s Collegiate Dictionary, a “fence” can consist of a “barrier intended . . . to mark a boundary.”  Even though the trees in this case were not planted directly on the property boundary line, the Court viewed a “row of trees” as something that is can be in the “nature” of a fence.

The Court reviewed the development of “spite fence” statutes in the United States.  The United States originally “borrowed” much of its real estate law from the law of England.  The Court noted that English law include the doctrine of “Ancient Lights” under which an English landowner could acquire an easement over neighboring property for the passage of light and air. However, such a doctrine didn’t fit well with the development of America, which was rapidly growing.  In its expansion period, America was interested in encouraging unrestricted land development.  Also, a landowner’s rights to use his land were virtually unlimited.  A landowner was considered to own his land to the “center of the earth and up to the heavens.”  Light had little social importance, and so American law generally rejected the English doctrine of “Ancient Lights” with the result that in contrast with their English counterparts, American landowners were not subject to this doctrine.

Next week’s article will discuss further issues between neighbors about the use of land.  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.  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. Landowners or prospective landowners with potential nuisance issues should consult competent legal counsel.

Copyright 2017 ROBERT B. JACOBS