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A Spite Fence That Grows Greener And Meaner

"Good fences make good neighbors" is the off-quoted line from Robert Frost. It is usually quoted out of its context in the poem that Frost actually wrote; and I have always suspected that in its original context the words were spoken by a man looking for an excuse to build a fence and who was not a good neighbor at all. Good neighbors, Frost slyly suggests, need no fences. But I think the contrary is even more true: Bad fences guarantee bad neighbors.

The law has long recognized that some people put up fences just to be mean to a neighbor. Like other states, California enacted a statute prohibiting "spite fences". Section 841.4 of the Civil Code reads: "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." Let's forget for the moment that in most cities one cannot get a permit for a fence as high as ten feet. The point of the statute is that a fence exceeding 10 feet in height usually cuts off the neighbor's view of something that the neighbor would normally want to view, and the person erecting the fence may intend to accomplish just that.

The statute refers to "any fence or other structure in the nature of a fence." No one has any trouble understanding what a "fence" consists of. But what about "other structure in the nature of a fence"? Taken literally, that phrase could refer to almost anything that one might build. The legislature apparently did not want anyone to argue that the thing that blocks the view is something other than a "fence." But did the legislature have in mind as well a tree, or more precisely a row of trees deliberately planted to block a neighbor's view? In what sense does a row of trees become the equivalent of a "structure in the nature of the fence"?

Those were the questions addressed in a recent appellate decision. (Vanderpol v. Starr [April 15, 2011]). The parties in that case were a downhill owner and an uphill owner, both of whom enjoyed a view of the ocean. (There is nothing a property owner will defend more ferociously than an ocean view for which he has paid a bundle of money.) A line of eucalyptus trees had been planted along the boundary on the downhill lot. For a while, the neighbors cooperated with each other in trimming the trees to about 14 feet in height. But one day an argument occurred about which trees would be trimmed and to what extent. Angry words were exchanged. Soon after the downhill owner began planting a large number of new trees - 20 pine trees and 65 Italian Cypresses. (For those without at least one green thumb, an Italian Cypress is a tall, slender tree, relatively fast-growing, and able to attain height of about 60 feet when mature.) Within a couple of years the newly planted trees reached a height of 40 to 50 feet; and the attorneys took over from the landscape gardeners.

At trial the jury found in favor of the uphill owner. The downhill owner appealed on the ground that under the statute a row of trees was not a "structure in the nature of a fence" --- or at least that California law had not yet established that proposition. The Court Appeal disagreed. It held that the "plain and common sense meaning of the term 'structure'" in the statute embraces anything "arranged in a definite pattern of organization" and a row of trees fits into that definition.

I have trouble agreeing that the word "structure" has such a plain and common sense meaning. True, a row, as contrasted with a scattering, is an arrangement. But we don't think of living things as being part of a structure. No one would call a row of horses pulling a carriage a "structure." That word ordinarily means something constructed through human labor using fabricated materials. A living, growing tree does not fit comfortably into that definition.

At the same time I cannot say that the Court of Appeal was wrong by engaging in semantic sleight of hand. In reality, the Court filled a gap in the statute that the legislature had overlooked. The legislature should have designated trees and other vegetation as the equivalent of a spite fence instead of vaguely referring to some "other structure in the nature of a fence."

And so it goes in the law. Legislators write imperfect statutes. Courts figure out the legislature's intent and make the necessary interpretation of the statute so as to achieve its intended purpose notwithstanding its inept, express language. Some people are uncomfortable with that judicial practice. Especially those on the losing side of the interpretation.

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