(UN)NEIGHBORLY SPITE FENCE DISPUTE

and#8220;Good fences make good neighbors.and#8221;

and#8212; Robert Frost

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Disputes with neighbors can be the worst kind. Whether itand#8217;s a barking dog, a shared fence, a house sitting over the boundary line, or even a spite fence, each can be a continuing and personal aggravation. Vanderpol v. Starr is a case in point.

Neighborly neighbors

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The Vanderpols and the Starrs have adjoining properties in Carlsbad, California. The Vanderpoland#8217;s house is uphill from the Starrsand#8217;. Both properties have ocean views.

The Starrs trimmed their eucalyptus trees and#8212; directly in front of the Vanderpoland#8217;s home and#8212; on a regular basis. All very neighborly as we say.

That all ended when Mrs. Starr and Mr. Vanderpol got into it in July of 2004 over the height of the Starrsand#8217; trees.

Tree planting

and#8220;Hedges between keep friendships green.and#8221;

and#8212; Proverb

About a month after the 2004 disagreement, the Starrs began planting a myriad of new trees along the partiesand#8217; common border, including approximately 20 pine trees and 65 Italian cypresses, and that was in addition to the eucalyptus trees. Later Mrs. Starr testified she had the trees planted so she did not have to see the Vanderpoland#8217;s and#8220;big ugly house.and#8221;

Trim your trees

and#8220;Love thy neighbor and#8212; but donand#8217;t pull down your hedge.and#8221;

and#8212; Benjamin Franklin

Of course the Starrs did not trim their trees. There is no and#8220;right to a view,and#8221; no view easement in California, so the Vanderpols sued under Civil Code section 841.4, the and#8220;spite fenceand#8221; statute. Only a dozen or so states have spite fence codes.

Spite fence

Californiaand#8217;s code is relatively straightforward: and#8220;Any fence or other structure in the nature of a fence unnecessarily exceeding ten feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. Any owner or occupant of adjoining property injured either in his comfort or in the enjoyment of his estate by such nuisance may enforce the remedies against its continuance prescribed in Title 3 of this code.and#8221;

The jury found the Starrs maliciously planted trees that unnecessarily exceeded 10 feet for the purpose of annoying the Vanderpols.

The first issue in this Court of Appeal case was whether a row of trees can be and#8220;a structure in the nature of a fence.and#8221; The Court easily concluded that a row of 10 foot tall trees planted for the purpose of annoying the neighboring property owner fits within the spite fence statute.

Planting so many trees right after their heated conversation was compelling evidence of the Starrsand#8217; intent to annoy. The Starrs appealed.

Not so fast

Under the statute, the Vanderpols had to prove that the trees injured them and#8220;in their comfort or the enjoyment of their estate.and#8221; The jury was not asked whether the Vanderpols were injured in either their comfort or enjoyment of their property. Somehow the lawyers missed that jury instruction. Oops.

The judgment in the Vanderpolsand#8217; favor was overturned.

The Court of Appeal ordered a new trial. A major hassle and expense for both sides. The Vanderpols will win if they can prove the tree planting injured their comfort or the enjoyment of their property, which they should be able to do. This might be a good time for the Starrs to start trimming those trees.

and#8220;A bad neighbor is a misfortune, as much as a good one is a great blessing.and#8221;

and#8212; Hesiod

Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at porter@portersimon.com or at the firmand#8217;s website http://www.portersimon.com.