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,
“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
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,
“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!
[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