"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.