Case of the Day – Thursday, February 23, 2023


I do not often report on a case that is probably destined for the dustbin of history, but then, these are unusual times. Climate change is a hot topic once again, and renewable energy (which became a whipping boy after the Texas freeze two years ago but a hero when Russkie gas suddenly disappeared from Europe last summer is a hot topic.

“You’re getting a little political, there, aren’t you, tree man?” readers are probably muttering. I am taking sides… I’m just observing that use of renewable energy is becoming a national priority. In today’s case, from 35 short years ago, access to sunshine was not a right that a landowner could assert against a neighbor whose trees had gotten too tall. I suspect that a California court today would not reach the same conclusion…

Sher v. Leiderman, 181 Cal.App.3d 867 (Ct. App., 6th District, 1986). In 1962, Rudolph and Bonnie Sher entered into a long-term land lease with Stanford University for a lot on the Stanford campus in an area known as Pine Hill 2, one of five model planned subdivisions developed by Stanford for use by faculty and staff. All building and landscaping on subdivision lots was subject to Stanford’s prior review and approval. Shortly after the Shers’ plans were approved, Herb and Gloria Leiderman leased an adjacent lot. They in turn obtained design approval for their home and proceeded with construction. Both families moved into their new homes in 1963 and have lived there ever since.

The Shers’ lot sits on the northeast slope of a hill. The Leidermans’ lot is southwest of the Shers’ and occupies the upper slope and the crest of the hill, fronting on Lathrop Drive. The two lots share a common boundary along the Shers’ southern – and the Leidermans’ northern – property line.

The Shers’ home was designed and built to take advantage of the winter sun for heat and light. The home is oriented on the lot so as to present its length towards the south. South-facing windows are relatively larger than others in the house. The south side of the house is also “serrated” to expose the maximum area to the sun. A large south-facing concrete patio operates to radiate sunlight into the home’s interior. Skylights add to the light inside the house and an open floor plan in the common areas increases the general circulation of light and air. Roof overhangs are designed at an angle and length to block the hot summer sun while permitting winter sunlight to enter the house. Roof and walls are well insulated. Deciduous trees and shrubs along the southern side of the house aid in shading and cooling in the summer but allow winter sunlight to reach the house.

The Sher home is a “passive solar” home., with design features and structures identified forming a system intended to transform solar into thermal energy. A concomitant design goal was to create a bright and cheerful living environment. Although the home includes many passive solar features, it does not make use of any “active” solar collectors or panels. Nor does it employ any “thermal mass” for heat storage and distribution. Building materials used throughout were typical and conventional for the time; the house does not contain any special materials primarily selected for effective thermal retention.

At the time the Shers and Leidermans designed and built their homes there were no trees on either lot. But over the years both the Shers and the Leidermans, as well as their neighbors, landscaped their properties. As noted above, the Shers’ landscaping was designed to enhance and complement their home’s effectiveness as a solar system. The Leidermans’ landscape plan was disapproved in part by the Stanford housing office, specifically because of trees to be planted along their northern property line bordering the Shers’ lot.

Despite the lack of approval, the Leidermans planted the trees, including a large number of Monterey pine, eucalyptus, redwood, cedar and acacia. The trees were planted to beautify the Leiderman property, to attract birds and other small creatures, and to provide shade and privacy, not with any intent on the Leidermans’ part to deprive the Shers of sunlight.

In 1972, the Shers discovered that some of the Leiderman trees cast shadows on the Sher house in the wintertime. The Shers paid to have the offending trees topped. In 1977, several other Leiderman trees were removed because their continued growth posed a threat to the sewer line. The cost of this removal was shared by the Shers and Stanford. Further tree work was done at the Shers’ expense in the winter of 1979. The Leidermans themselves also engaged in other tree trimming and removal over the years at a cost of about $ 4,000. Since 1979, however, the Leidermans refused trimming, either on their own or in cooperation with the Shers.

At time of trial, trees on the Leiderman property completely blocked the sun to much of the Sher home in the winter months. From December 21 to February 10, the central portion of the Sher home was cast in shadow between 10 a.m. and 2 p.m. The Shers added a skylight over their kitchen area to help alleviate the problem, but now this too is largely shaded during the winter.

The shade problem transformed the formerly cheerful and sunny ambience of the Sher home; the interior is now dark and dismal in the winter months. The shading has also had an adverse impact on the home’s thermal performance. The Shers’ expert testified that heat loss during the winter months amounted to an equivalent of $30 to $60 per season in heating costs. Two experts testified that the loss of sunlight to the Shers’ house has resulted in a diminution of market value between $15,000 and $45,000. The trial court also found that the Shers have suffered actual and serious emotional distress as a result of the blockage of sunlight to their home.

In order to restore sunlight to the Sherså’ home during the winter months it would be necessary to trim some of the Leidermans’ trees, top others and remove those where topping would destroy the character of the tree or possibly kill it. Annual trimming would also be necessary.

The Shers sued, claiming the Leidermans’ trees were a private nuisance as well as a public nuisance under the California Solar Shade Control Act (Pub. Resources Code § 25980); and alleging negligent infliction of emotional distress. The trial court found for the Leidermans.

The Shers appealed.

Held: The Leidermans did not owe a duty to the Shers, and their trees were not a nuisance just because they blocked the sunlight.

The trial court found that the relief requested by the Shers would amount to burdening the Leiderman property with a permanent easement for passage of light to the Sher property. It is well settled in California, however, that a landowner has no easement for light and air over adjoining land in the absence of an express grant or covenant. Nuisance law likewise holds that blockage of light to a neighbor’s property, except in cases where malice is the overriding motive, does not constitute actionable nuisance, regardless of the impact on the injured party’s property or person.

The public interest in promoting solar energy, the Court said, did not justify creating a private cause of action in nuisance by one neighbor against another for obstruction of light to a house designed to take advantage of winter sun for heat and light. Each landowner’s right to use his property lawfully to meet his legitimate needs is a fundamental precept of free society, and, although his use may be made subject to limitations for the public good, it cannot be said his rights as to adjoining landowners are thereby diluted.

The general rule is that in determining whether any interference with use and enjoyment of land is unreasonable a court must balance the gravity of the harm against the utility of the conduct. As for the value of solar energy, it is solely within the province of the Legislature to gauge the relative importance of social policies and decide whether to effect a change in the law so as to create a private cause of action in nuisance for blockage of light to a neighbor’s property.

The California legislature has created an exception to established nuisance law in the Solar Shade Control Act, Pub. Resources Code, §§ 25980-25986 The Act prohibits landowners from planting or allowing a tree to grow which will shade more than 10 percent of a neighbor’s solar collector during certain hours of the day. The Court observed that judicial expansion of the law would be unwarranted, whether it constitutes a limitation on legislative protection of solar access or the initial phase of a more comprehensive legislative plan to guarantee solar access, particularly where legislative solutions are feasible as shown by legislation enacted by another state.

The Court said that allowing a landowner to bring a nuisance action to prevent a neighbor’s blockage of sunlight to the owner’s property would violate established principles of due process and property law, which require that a property owner or prospective purchaser have notice of limitations on the use of his property. Zoning and other local ordinances provide such notice as do the recording laws, while abatement through a nuisance action does not. Furthermore, creation of such a cause of action would foster ill will and proliferate litigation between neighbors.

In an action to enjoin a public nuisance under the Solar Shade Control Act, Pub. Resources Code, §§ 25980-25986, the windows and skylights could not be construed as solar collectors as defined in Pub. Resources Code, § 25981, which includes in its definition a structure or part of a structure used primarily as part of a system which makes use of solar energy for space heating or cooling. Although the windows and skylights were intended to catch the winter sun and provide warmth to the house, this was not their primary purpose. Furthermore, inclusion of portions of a house such as the windows, walls, roof, patio, and skylights as within the act’s definition of solar collectors would impose upon the local law enforcement agencies responsible for enforcing the act the enormous task of determining whether a portion of a house was actually a solar collector whenever it was not readily identifiable as such.

In determining whether the Legislature intended the term “solar collector” in the Solar Shade Control Act to include passive solar collectors such as windows and skylights, Pub. Resources Code, § 25980 is not controlling. That section speaks of imposing only specific and limited controls on the shade cast by trees and shrubs on solar collectors. The Legislature’s intent to exclude passive solar collectors from the act’s coverage is also established by the requirement of § 25981 that structures must be primarily used as solar collectors to be included within the act’s coverage.

Finally, in their action for negligent infliction of emotional distress, the Shers proved they had suffered emotional distress due to the fact that trees planted on the Leidermans’ property had grown to the point that they shaded the south-facing windows of the Shers’ house, making it gloomy and cold during the winter months. Nevertheless, the trial court properly denied the Shers any recovery, where the injury causing the emotional distress was only to their property, where there was no trust, contractual, or other special relationship between the parties giving rise to a duty on defendants’ part, and where defendants had acted reasonably in planting trees on their property and allowing them to grow.

– Tom Root


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