Case of the Day – Friday, September 12, 2025

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SPITE FENCE TAFFY PULL

Trust an angry plaintiff and a clever lawyer to stretch a useful concept like “spite fence” – which we have been talking about the last few days – like a salt water taffy pull.

We have established that a spite fence requires unreasonable height and a malicious motive. We have also figured out that a spite fence can be something other than a fence, such as the Maine widow woman’s “spite trees.”

It was probably inevitable that someone would go after a neighbor for planting plants that may someday be too tall. Add a complaint that the neighbor refused to knuckle under when the plaintiff tried to boss him and her around regarding their landscaping, and, voilà, you have malice.

Just as the cops in Minority Report arrested people who would someday commit a crime (surely a useful idea), this theory holds people liable because their plantings might someday be a natural spite fence.

Fortunately, the Mississippi courts that heard this one all made short work of it.

Blackwell v. Lucas, 271 So. 3d 638 (Ct. App. Mississippi, Nov. 20, 2018): The Lucases planted some plants and shrubs in the front yard of their Ocean Springs, Mississippi, home. The Blackwells believed that if allowed to grow, the plants and shrubs would at some indeterminate time in the future block their view of the ocean, the sunsets and the beautiful areas normally and typically available to property owners in the Oak Bluff Subdivision.

Thus, the Blackwells asked the Lucases to remove the plants and shrubs or to retard their growth so that their view of the ocean and surrounding area would not be impaired. The Lucases, being your average, reasonable American homeowners, declined courteously.

Actually, it may not have been “courteously.” The Blackwells argued that the Lucases were being mean: “The shrubs and plants installed by Mr. & Mrs. Lucas have no beneficial use and were installed and maintained by them for the purpose of annoying the Blackwells and preventing them from enjoying their property.”

The Blackwells, also being your all-too-common American homeowners, sued the Lucases for planting shrubs that “will unreasonably block the view of the Blackwells.” The term “unreasonably,” in this case, apparently meant anything that might alter the status quo in any manner the Blackwells found objectionable: “The actions of Mr. & Mrs. Lucas,” the Blackwell’s complaint alleged, “amounts [sic] to and/or equates [sic] to an invasion of the Blackwells’ interest in the use and enjoyment of their land and the invasion is intentional and unreasonable or negligent.”

Strong words, indeed! But the trial court was unimpressed and tossed the suit out on its ear. Not taking the hint, the Blackwells appealed.

Held: The trial court’s dismissal was upheld.

The Blackwells had no common law or statutory right to an unobstructed view across the Lucases’ property, nor did they have a right to dictate the type or placement of the Lucases’ plants and shrubs. The Blackwell complaint failed to state a cause of action for a nuisance or to allege any present injury or an imminent threat of irreparable harm for which there was no adequate remedy at law.

The Court of Appeals observed that a cause of action arises out of a pre-existing primary legal right with which the law invests a person. The right to maintain an action depends upon the existence of a cause of action which involves a combination of a right on the part of the plaintiff and the violation of such right by the defendant. Thus, the existence of a legal right is an essential element of a cause of action, inasmuch as a plaintiff must recover on the strength of his own case instead of on the weakness of the defendant’s case. It is the plaintiff’s right, not the defendant’s wrongdoing, that is the basis of recovery.

That right or duty must be a legal right or duty, and not a mere moral obligation that is enforceable neither in law nor in equity.

Applying the general notion to this case, the Court of Appeals observed that property owners have a legal right to cut and remove any part of a plant or shrub that grows on or overhangs their property. They have a legal right to sue to abate a nuisance. But property owners have no legally cognizable right to a view across their neighbors’ property. Nor do they have a right to dictate the type or placement of the neighbors’ shrubs.

The shrubs were not a nuisance. The Lucases would be subject to liability for a private nuisance only if their conduct is a legal cause of an invasion of the Blackwells’ interest in the private use and enjoyment of land. Again, without a legal right to a view across the property, there simply is no such interest to be invaded.

But the Blackwells tried to bootstrap their claim into a “spite fence” argument. They argued that the plants and shrubs would someday obstruct their view, and this fact gave them a viable cause of action for a “spite fence” nuisance.

The Court of Appeals held that the Blackwells’ “spite fence” claim had no basis in Mississippi law. Because the one Mississippi case on “spite fences” was decided by an evenly divided Court, “there is still no precedent for such a claim under Mississippi law. Moreover, we decline to recognize a new cause of action for a “spite fence” in a case that does not even involve a fence,” but instead only “some unspecified ‘plants and shrubs’ that, “[i]f allowed to grow,” allegedly may obstruct the Blackwells’ view.

– Tom Root

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Case of the Day – Thursday, September 11, 2025

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HAWAII SINGS HAWAII

Regular readers know that I often write about the Hawaii Rule, easily the second most cited rule in arboriculture law. But for all of that, the great State of Hawaii has not expounded on the seminal holding in Whitesell v. Houlton, the decision that most famously rejected the second prong of the Massachusetts Rule by holding that when a landowner’s tree became a nuisance to his or her neighbor, the neighbor could compel the landowner to abate the nuisance – that’s legalese for remove the tree or at least the part of the tree that was bedeviling the adjoining property owner – at the landowner’s expense.

Whitesell, which adopted a rule from an old Virginia case, Smith v. Holt, held that a tree was a nuisance if it was “noxious” or if there was an imminent danger of it causing “sensible harm” to property (besides plant life) other than by “casting shade or dropping leaves, flowers, or fruit.” “Sensible harm” is a standard not causing much confusion: tree roots heaving basement walls, danger trees about to fall on nearby cars and structures – it has always been reasonably obvious what “sensible harm” might be. But what might Whitesell’s reference to “noxious” trees be all about?

About 35 years after Whitesell, a Hawaii court has finally tackled the question, interpreting Whitesell and providing a rare glimpse at a court admitting that its own precedent, if not wrong, at least was a bit too frisky. Not that I am surprised, it turns out that Whitesell’s reference to noxious trees” was meaningless surplusage, language borrowed without much consideration from a since-discredited Virginia decision.

No one ever expected a litigant to latch on to the “noxious” half of Whitesell’s disjunctive definition in order to make his case. When the plaintiff in today’s case did just that, the appellate court was compelled to admit that Whitesell’s inclusion of ‘noxious’ was “superfluous.” Translation: Whitesell said ‘noxious’, but it did not mean it.

The appellate court in today’s case did the only thing it could: it decided to “modify [the] holding in Whitesell for when a plant can be considered a nuisance. Plants whose overhanging branches cast shade or drop leaves, flowers, or fruit, or whose roots interfere only with other plant life, are not nuisances. Overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, material harm to a person or to property other than plant life.”

Good idea, even if it’s 35 years late. Get rid of the ‘noxious’ language. If the tree is noxious, it probably already poses an imminent danger to people or property. And that is exactly what a non-noxious tree does when it has become a nuisance.

For heaven’s sake, simply define the tree by the imminent threat it represents, not with some squishy term like ‘noxious’.

Spittler v. Charbonneau, 145 Haw. 204, 449 P.3d 1202 (Ct. App. 2019). Scott Spittler sued his neighbors, Paul and Janice Charbonneau, raising all sorts of trespass, nuisance and related claims. The claims relevant here is his claim that the Charbonneaus’ ironwood trees, planted in 1983 as windbreaks under a U.S. Dept. of Agriculture program, were dropping leaves and branches on his property, and had “an extensive root system, have created a poor growing environment, and continue to present danger to person, real property, and agricultural products of [Spittler].” For good measure, he also claimed that the trees were ‘noxious,’ based upon a “high risk” rating of “12” set out on the Hawaii Pacific Weed Risk Assessment website. He demanded that the Charbonneaus remove the trees at their expense.

The trial court held for the Charbonneaus, finding that “the intrusion by way of overhanging branches, leaves and roots into Scott’s property that results in damage to plant life is not a nuisance and not compensable.”

Scott appealed.

Held: The trees were neither noxious nor nuisances. What’s more, Whitesell’s reference to noxious trees being nuisances is surplusage that should be stricken from the decision.

The Court observed with some surprise that “in a state known for its lush foliage, there appears to be only one reported appellate decision, Whitesell v. Houlton, addressing when a plant that naturally encroaches upon a neighboring property can constitute a nuisance. Whitesell adopted a modified version of the Virginia rule set forth in Smith v. Holt, which was later overruled in part by Fancher v. Fagella. Borrowing from Smith v. Holt, Whitesell held that “non-noxious plants ordinarily are not nuisances… Overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

Thus, according to Whitesell, the Charbonneaus’ trees could be considered a nuisance if: (1) they were “noxious”; or (2) they caused, or there was an imminent danger of them causing, “sensible harm” to property other than plant life other than by “casting shade or dropping leaves, flowers, or fruit.”

“In Whitesell,” the Court said, “we did not define the word ‘noxious’ or formulate a test to determine when a plant could be considered ‘noxious.’ The difficulty inherent in characterizing a plant as ‘noxious’ is illustrated by this case. Scott argues that ironwood trees are “noxious” based upon a “high risk” rating of “12” on the Hawaii Pacific Weed Risk Assessment website. That website does not use the word “noxious” and states only that the “small-cone ironwood” is “[u]sed in [Hawai’i] for windbreaks at higher elevations. Wood used for fuel.” It does not indicate that the ironwood is “physically harmful or destructive to living beings,” which is the definition of “noxious” contained in the Merriam-Webster dictionary.” The Court noted that some Hawaii cases had characterized some other flora as being noxious, but ironwood trees weren’t on anyone’s list except for Scott’s.

The Court sheepishly admitted that “[o]ur use of the word “non-noxious” in Whitesell was superfluous. A noxious plant — i.e., one that is “physically harmful or destructive to living beings” — is one that actually causes, or that could pose an imminent danger of causing, material harm to persons or to property other than plant life; conversely, a plant that actually causes, or that poses an imminent danger of causing, material harm to persons or property other than plant life may be considered noxious. We note that certain plants, such as coconut palms, are capable of causing material injury to persons or to property other than plant life just by dropping fronds or nuts. We also note that tree roots can, under some circumstances, pose imminent trip[ping] hazards without damaging property other than plant life. We therefore modify our holding in Whitesell for when a plant can be considered a nuisance. Plants whose overhanging branches cast shade or drop leaves, flowers, or fruit, or whose roots interfere only with other plant life, are not nuisances. Overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, material harm to a person or to property other than plant life. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, harm to a person or to property other than plant life, the damaged or imminently endangered neighbor may require the tree’s owner to pay for the damage and cut back the endangering branches or roots and, if that is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

The only dispute before the court alleged the ironwoods dropped “overhanging branches which merely cast shade or drop leaves, flowers, or fruit,” and “roots which interfere only with other plant life.” Under those facts, the Charbonneaus’ trees were not a nuisance…

– Tom Root

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Case of the Day – Wednesday, September 10, 2025

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A TALE OF TWO TALES

It is often tempting to consider only one side of a story. It makes for humor, it fuels rage, often it titillates. Indeed, it is the very basis of social media fury.

I remember the story about Dan Quayle lamenting that, “I regret I didn’t study Latin harder in school so I could converse with people in Latin America.” Great yarn, illustrating just how vapid and shallow the Vice President really was. The story became much less interesting when you heard the other side.

There was another side? Well, yes. During a speech in April 1989, Representative Claudine Schneider of Rhode Island told a gathering of Republicans that she had recently attended an event at the Belgian embassy, also attended by Vice-President Quayle. They spoke to each other, and the Veep complimented the Congresswoman on her command of French.

Then, Schneider told the group, the vice president said, “I was recently on a tour of Latin America, and the only regret I have was that I didn’t study Latin harder in school so I could converse with those people.” Ms. Schneider intended to make a joke, something she explained at the conclusion of her speech. Somehow, the media missed the disclaimer and presented her joke as fact.

Reading today’s case reminded me of the dangers of uncritical acceptance of one version of reality. The majority describes a mean old woman who was willing to go to great lengths to mete out woe to her nice neighbors. The dissent, on the other hand, tells about a nice widow woman who had lived in harmony with her neighbors for 40 years, until a pair of boorish neighbors upset the neighborhood, stole her property, denuded the landscape and let their dogs take dumps all over Patty’s yard. To protect herself, the widow tries to restore nature, only to be sued by the Philistines next door.

What is at once puzzling and disheartening is that the judges are reaching their conclusions from the same pool of evidence.

Tranfield v. Arcuni-English, 2019 ME 135 (Supreme Ct. of Maine, Aug. 15, 2019): A nasty neighbor, an old battleaxe octogenarian named Patricia Arcuni-English, took an immediate disliking to her new neighbors, the Tranfields. The day the Tranfields moved in, Richard knocked on Patty’s door, seeking to borrow a bit of firewood. She refused to open it. Richard took a few logs, intending to replace them later. Patty, watching from behind the curtains, saw him take the wood.

[We can stop the recitation of facts right there, as far as I’m concerned. We have a term for people who take the property of others without permission, even when they later claim that they had always intended to replace it at a later time. We call them “thieves.” Apparently, things are different in Maine. At any rate, imagine the gall of that old woman, disliking her new neighbors because she saw them stealing her wood!]

Of course, the real factual recitation does not end there. Instead, it continues…

Later, Richard was removing a tree near a shed on his property and limbing dead branches on his property along the property boundary line. Patty approached him, furious that he would dare to cut his trees without discussing it with his neighbors first. She threatened to install a 10-foot fence to block the Tranfields’ view of the ocean. At the same time, she chewed Richard out for the Tranfields having removed a koi pond on their property and for letting their dogs do their business in her yard.

Later, while Patty was traveling, a local landscaper who works for both parties sent Patty a photo of the parties’ boundary line. The Tranfields had cleared much of the deadwood and debris on their property, opening up a view of their house to Patty. She was devastated by the Tranfields’ having cleaned up their property and called the landscaper. She told him she needed trees and privacy, and they discussed how to do it.

A few months later, the landscaper planted 24 arborvitaes along the boundary line. The trees were 10-12 feet tall, with some shorter trees installed to create an additional row to fill in any gaps. The landscaper also installed seven 4-6’ tall pine trees near a structure on Patty’s property.

The Tranfields sued Patty, alleging that the plantings were nothing but a spite fence. They asked for damages and injunctive relief. The trial court found that Patty’s “dominant motive was to install a continuous green barrier between the two properties along the boundary line. The trees were installed without any advance notice to the Tranfields, along the portion of the boundary that would block their view and without considering other types of vegetation that could provide her privacy without blocking entirely the slot view that the Tranfields had or without totally closing in their back yard.”

The trial court thus concluded that the mean old lady had constructed a spite fence, albeit one made of trees. It ordered Patty to remove every other pine tree along the boundary line, remove the trees that were planted as an additional row to fill in gaps and trim all of the arborvitae to a height no greater than 10 feet. Additionally, the court prohibited her from replacing any of the arborvitae that might die off.

Patty appealed, and the case ended up before eight judges of the Maine Supreme Court.

Held: A seven-judge majority of the Court said Patty’s arborvitae had to go.

The Court cited 17 M.R.S. § 2801, which stated, “Any fence or other structure in the nature of a fence, unnecessarily exceeding 6 feet in height, maliciously kept and maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.” The Tranfields, as the plaintiffs, bore the burden of demonstrating each of these elements by a preponderance of the evidence. However, they did not have to prove that “malice, the purpose to annoy, was the sole motive for building the fence. The plaintiff needs only to prove that such was the dominant motive, meaning that without that malicious motive, the fence would not have been erected or maintained.”

The Maine Supreme Court held that the Tranfields met their burden. The finding of malice, the Court said, “is supported by the history of animosity between the parties,” the fact that Patty’s “claimed reason for building a fence was not credible,” the fact that Patty installed the fence without advance notice to the Tranfields, and “the size, extent, and anticipated growth of the trees.”

The Maine Supreme Court conceded that it did “not doubt that her privacy was part of her concern,” it determined that Arcuni-English’s motive was malicious and without that motive, she would not have installed the trees as she did, even to vindicate her privacy interest.”

Patty argued the court should not have assigned a malicious motive to her because she deferred to the landscaper on decisions about what to plant and where. The trial court disagreed, noting that its analysis of whether this was a spite fence was informed by the acrimonious encounters between the parties that had occurred before any decisions concerning what to plant were made. Finally, she argued that the court erred by finding that the height of the trees unnecessarily exceeded six feet because she presented the landscaper’s uncontradicted testimony that trees of this height were necessary to protect her privacy. Simply enough, the court refused to believe the landscaper, as it had the right to do.

At the start of the trial, the court visited the property to inspect the arborvitae in question. Thus, as the Maine Supreme Court put it, the trial court “was able to weigh the testimony it heard during the trial in light of the information it acquired during that view. As its judgment indicates, the court specifically considered the number and size of the plantings, as well as Patty’s malicious motive, in finding that the trees were “unnecessarily” taller than six feet.

Thus, the Supremes held, the trial court “did not err by determining that Patty’s installation of trees on the parties’ boundary line constituted a spite fence pursuant to § 2801 because her installation of more than thirty trees, which created a dense and continuous wall, was done with malice.”

But what if Patty wasn’t a nasty old woman? A dissenting judge took a decidedly different view of the evidence, finding that “from the time they moved onto their property, Richard Tranfield and Karla Doremus-Tranfield provoked, promoted, and continued an adverse relationship with their elderly neighbor, Patricia Arcuni-English… The trial court failed to sufficiently consider the role the Tranfields’ provocations played in Ms. Arcuni-English’s efforts to restore her privacy after the Tranfields had eliminated the privacy barrier between the two properties.” Further, “the trial court’s finding that Ms. Arcuni-English requested her landscaper to plant trees “to ensure her privacy” and did not tell him “to block their view,” is inconsistent with its finding that malice – a purpose to annoy-was the dominant motive in planting the trees at issue.”

The dissenting judge seemed to me to be right on point when he said Patty, “a woman in her eighties, lives alone in the Camden residence she has occupied for more than forty years.” The very day in January 2016 the Tranfields moved in, Patty returned home to find “Mr. Tranfield apparently stealing firewood from her home. The trial court found that the Tranfields “left a note on her door” indicating that they had taken the firewood. That finding has no support in the record evidence. In any event, a note, if there ever was one, would have done little to ameliorate the bad first impression already created. The Tranfields followed up the negative start to the neighborly relationship by releasing their dogs to urinate and defecate on Ms. Arcuni-English’s property. Then, without notifying Ms. Arcuni-English, they cut a couple of trees near her property.”

After Patty threatened to build a fence to block the Tranfields’ view of the ocean, while she was away from her residence, the Tranfields chopped down the barrier of greenery on their property that had provided privacy to Patty’s home for several decades. When Patty found out, she was “devastated.” So, as the dissent put it, “She called the landscaper and said, ‘I need trees’.”

The dissent complained that the trial court specifically found that Patty “never told [the landscaper] to block their view…” The landscaper “was her agent when he sent the photo to her of the trees cut down. She only said she needed trees and privacy and directed [the landscaper] to install trees but left to him decisions concerning what trees and where to place them to ensure her privacy.” Even the trial court found that it “does not doubt that her privacy was part of her concern.”

The dissent complained that the spite fence statute “does not appear to contemplate the situation, as occurred in this case, where the adversity in the relationship that the court found led to the planting of the trees was provoked, at least in part, by the hostile actions of the plaintiffs, and where the ‘fence or other structure’ only replaced a barrier that previously existed.

Additionally, the dissent wondered how the majority “could find malice the ‘dominant motive’ in planting the trees when it also found that ‘she never told [the landscaper] to block their view’ and ‘left to him decisions concerning what trees and where to plant them to ensure her privacy’.”

The question will remain rhetorical because the wood-taking Tranfields convinced a majority of the judges that Patty was a mean old woman and they were well-meaning, innocent neighbors.

– Tom Root

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Case of the Day – Tuesday, September 9, 2025

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YOU DON’T KNOW, JACK

Louisiana alone among the fifty states has a diverse (some might say muddled) legal history. Due to its heritage of French ownership for 81 years, then Spanish ownership for 38 years, and finally French for a few more (until Thomas Jefferson bought the place), Louisiana law between private parties, principally contracts and torts, is based on French and Spanish codes and ultimately Roman law, with only a few common law influences.

Rather than relying on stare decisis and law by accretion – that is – judicial decisions on real conflicts following prior cases and in some cases expanding on the principles that controlled the resolution of the conflicts, Louisiana has a comprehensive civil code, sort of like a binding version of Restatement of Torts and Restatement of Contracts.

Not everything is different, however. Louisiana’s laws, like those of other states, occasionally establish legal presumptions. All a presumption does is tilt the scales one way or the other, depending on the public convenience or good. And presumptions are doggone useful: For instance, a child born of a husband and wife living together is presumed to be the natural child of the husband. A person who has disappeared and not been heard from for seven years is presumed to be dead. And the one we all know from TV, an accused person in a criminal proceeding is presumed innocent until proven guilty.

Presumptions can also be useful in tree law. If a tree is growing on the boundary between your property and your neighbor’s, it can be pesky and difficult to prove who planted it, when it was planted, and what arrangements the people then owning the properties may have made regarding the sapling. Some states resolve this issue simply: if it straddles the boundary, it is commonly considered to be owned by both landowners, and neither can interfere with it without the other’s consent. Others make it more difficult: whether the tree is commonly owned depends on whether the neighbors claiming part ownership can jump through hoops to prove they (or their predecessors-in-interest) helped plant or nurture the tree, or treated it as the boundary line.

Louisiana splits the difference: it presumes that if the tree is on the boundary, it is commonly owned. However, either neighbor may rebut that presumption by offering evidence that the tree is not commonly owned.

In today’s case, the plaintiffs – Mark and Catina Jack – were unable to prove that the tree was not commonly owned. They could not show who planted it, when it was planted, or what arrangements had been made. The court declared the presumption to control the case, saying that as far as any evidence to the contrary went, “You don’t know, Jack.”

Jack v. Successions of Albert, 2019 La.App. LEXIS 1512 (La.App. 1 Cir. Sept. 4, 2019):  The Jacks and the Alberts are neighbors. A large oak tree stands on the boundary between their properties. The Jacks complained that the roots of the tree were heaving the concrete in their driveway. The Jacks alleged that the Alberts owned the tree, and demanded that they pay to remove the tree and fix the driveway.

Louisiana Civil Code article 688 gives a landowner the right to demand that the branches or roots of a neighbor’s trees that extend over or into the landowner’s property be trimmed at the neighbor’s expense, provided that the roots or branches interfere with the enjoyment of the landowner’s property. The Jacks sought to recover the costs and expenses to repair the driveway, as well as damages for inconvenience and mental anguish.

At trial, the Jacks offered evidence of the extent of the damage to the driveway. The Alberts, on the other hand, offered the testimony of a surveyor who testified that the tree is located on the boundary between the Jacks’ and the Alberts’ properties. The Alberts argued that under Civil Code article 687, trees on the boundary are commonly owned unless there is proof to the contrary. Article 687 gives an adjoining landowner the right to demand the removal of a tree on the boundary that interferes with the enjoyment of his or her estate, but that owner must bear the expense of the tree’s removal. Based on these articles, the Alberts argued that the oak, located on the boundary of the two properties, is presumed to be the common property of the parties. Because the Jacks offered no evidence to rebut the presumption of common ownership, the Alberts contended, the Jacks must pay to remove the tree and fix their own driveway.

The trial court found for the Jacks, expressing its belief that the tree started growing on the Alberts’ property. The court ruled that the absence of evidence regarding how the tree arrived was irrelevant. Instead, it found that the Jacks’ photographs showed that most of the tree was on the Alberts’ property. The trial judge said he would be “hard-pressed” to find the tree was a boundary tree commonly owned by the Jacks and the Alberts.

Concluding that the oak was originally the Alberts’ tree, the court awarded $8,500.00 damages to the Jacks.

The Alberts appealed.

Held: The trial court holding was reversed because the Civil Code’s presumption that the boundary tree was commonly owned carried the day.

The record showed the tree was already on the boundary when the Jacks bought their property in 2003. The Alberts called Charles St. Romain, a civil engineer, whose testimony was less than stellar. He testified that the tree was “smack dab” on that line, but admitted on cross-examination that it was not really “smack dab” in the middle, and when it was a small tree, it probably was not a boundary tree at all.

But shaky testimony is better than no testimony at all. Under Louisiana law, trees belong to the owner of the soil on which they stand, regardless of their proximity to the property line. A landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants that extend over or into his property be trimmed at the expense of the neighbor. An adjoining owner has the right to demand the removal of boundary trees, bushes, or plants that interfere with the enjoyment of his estate, but he or she must bear the expense of the removal.

Under Louisiana Civil Code article 687, trees, bushes, and plants on the boundary are presumed to be common unless there is proof to the contrary. Here, the Court of Appeals said, everyone agreed the oak tree is located on the boundary between the Jack and Albert properties. And everyone agreed that the oak tree’s roots had encroached under the Jacks’ driveway, causing damage and thus interfering with their enjoyment of their property. If Civil Code article 688 applied, the Alberts had to pay for the Jacks’ driveway and tree removal. If Civil Code article 687 applied, the Jacks would have to bear their own costs and damages.

The appeals court held that the correct interpretation of the Civil Code 688 assigned the Jacks the burden to prove that the offending tree was located on a neighbor’s property. However, Civil Code article 687 establishes a presumption that a tree located on the boundary between two properties is commonly owned. The section permits the presumption of commonness to be overcome by proof to the contrary, but that placed on the Jacks the burden to convince the trial court that their proposed conclusion is more correct than the presumed one. The presumption does not have any probative value in and of itself, but it does provide the factfinder with a conclusion in the absence of proof to the contrary.

If there is no proof to the contrary and the presumption of commonness stands, an adjoining landowner may have a common tree removed from the property but must do so at his or her own expense. The location of the oak tree on the boundary between the Albert and the Jack properties triggered Civil Code article 687′s presumption that the tree is a common one. “The Jacks,” the Court said, “who are claiming that the tree on the boundary is not common but is in fact owned by the Alberts, bore the burden of offering proof sufficient to overcome the presumption that the tree is commonly owned.”

The trial judge was wrong. The absence of evidence as to how the tree got there was very relevant. There is no evidence, the appeals court ruled, as to who planted the oak or when it was planted. While a photograph shows that years ago, a young tree may have been solely on the Alberts’ property, “the photograph is not conclusive since there is no expert testimony presented by the Jacks as to the exact location of the property line in said photograph. The only established fact is that the tree in question is located on the property line. Therefore, it is presumed to be common under Civil Code article 687.

The Jacks had an opportunity at trial to present proof that the tree is not a common one, but they failed to do so. Because the tree is presumed to be common, and the presumption of commonness was not rebutted by the Jacks, the Jacks and the Alberts are deemed to be co-owners of the tree.

– Tom Root

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Case of the Day – Monday, September 8, 2025

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SPITE THROUGHOUT HISTORY

Last Friday, we looked at the problem with spite fences. Spite fences, we noted, are usually defined by statute. But not always.

In some places, a spite fence was defined the same way that Justice Potter Stewart defined pornography when he quipped in Jacobellis v. Ohio: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…”

In today’s case, the record seemed pretty clear that what the court was dealing with was a spite fence. There was animosity, an overly tall fence, and apparently no good reason why a rational homeowner would have built it.

Yup. A spite fence. The trial court knew it when it saw it, even without a statute defining it. The judge held it to be a spite fence.

But what to do about it? The only law on Montana’s books was from back in the day when men were men and women were afflicted. No, not 1991, but 1899. And that ruling held that a landowner could pretty much do whatever the tarnation he (and they were mostly “he” back then) wanted to do. The trial court had to rule that the spite-fencer could get away with it but urged the appeals court to rule the other way.

And rule the other way it did. With all of that clap-trap about whether the Supreme Court eviscerated the doctrine of stare decisis in order to reverse Roe v. Wade and the Chevron doctrine, this case demonstrates the obverse of the stare decisis debate: sometimes, a slavish adherence to the ways things have always been done is not all that it’s cracked up to be. Imagine if the Supremes had decided that Plessy v. Ferguson‘s “separate but equal” doctrine should control the outcome of Brown v. Board of Education…

Haugen v. Kottas, 307 Mont. 301, 37 P.3d 672 (Supreme Ct. Mont, 2001). When his parents died, Bill became sole owner of the property. In 1999, he removed the chain link fence. Don was upset over the fence’s removal and wanted to build a replacement wall and have Bill pay for it. Bill refused, but he ordered a survey. The survey found that the chain-link fence had always been on Bill’s land. The survey also determined that Bill’s flagpole and several of his lawn sprinklers were located on Don’s property. What’s fair is fair: Bill removed those.

Don was not mollified. The next summer, he dredged his pond and moved it a few feet to the east. He then built a wooden fence about 200 feet long and 7 and a half feet tall. The back side of the wooden fence faces Bill’s property and obstructs his view to the east of Upper Spring Creek.

Now it was Bill who was unhappy. He sued, asking the court to issue an injunction ordering Don to tear down that wall, alleging that it was a spite fence. The trial court agreed that Don’s monstrosity was clearly a spite fence, but concluded that there was no remedy under Montana law for a spite fence, basing its decision on an 1899 Montana holding, Bordeaux v. Greene, that a person having a legal right to property can enforce the enjoyment of it without anyone being able to question his motive. The trial judge did not much like having to reach that conclusion, and asked “the appellate court to revisit Bordeaux in light of the significant changes in property law made during the past 100 years.”

Bill appealed.

Held: Bordeaux was yesterday’s news, and was overruled. Don’s spite fence had to go.

Bill argued that this Court should overrule Bordeaux based on the many changes that have occurred in property law since 1899, citing an Idaho holding that a property owner cannot erect a structure for the sole purpose of injuring his neighbor. The Supreme Court of Montana agreed, holding that Bordeaux no longer expressed the modern approach to property rights. Under that modern approach, the Idaho Supreme Court case held in the 1973 case of Sundowner, Inc. v. King, “one may not erect a structure for the sole purpose of annoying his neighbor. Many courts hold that a spite fence which serves no useful purpose may give rise to an action for both injunctive relief and damages… No man has a legal right to make a malicious use of his property, not for any benefit or advantage to himself, but for the avowed purpose of damaging his neighbor.”

The Court agreed with the Idaho Supreme Court’s analysis in Sundowner. The Court ruled, “We hold that no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor. We further hold that such an action will give rise to an action for both injunctive relief and damages.”

Don argued that Bill chose the wrong remedy by not stating a claim for nuisance. The Court rejected that claim. “Nuisance,” the Court said, “includes all wrongs which have interfered with the rights of a citizen in the enjoyment of property… A spite fence is defined as one which is of no beneficial use or pleasure to the owner but was erected and is maintained for the purpose of annoying a neighbor… Many courts characterize a spite fence as a nuisance. Although Bill could have filed a nuisance claim, he was not required to.”

– Tom Root

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Case of the Day – Friday, September 5, 2025

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DESPITE THE SPITE, IT’S THE WRONG HEIGHT

Over the next few days (with time off for the weekend), we’re going to talk about “spite fences,” structures one neighbor erects because he or she does not like the other neighbor. Often creative, always ugly, spite fences are traditionally not prohibited by common law (the court-made rules of conduct that have evolved over the centuries). For that reason, just about all states have statutes that address the problem.

The law in the 49 common-law states (sorry, Louisiana, not you) disfavors statutes that are contrary to common law. Anyone who has ever watched a state legislature in action may understand the origin of this common-sense presumption. Flowing from the presumption is the general rule that when a statute is contrary to common law, it must be interpreted strictly and literally.

In today’s case, one neighbor accuses another of anti-Semitism, general nastiness, and such animus that the neighbors have teamed up with the homeowners’ association to run the plaintiff neighbor out of town. No one knows whether the plaintiff’s neighbor’s allegations are correct: in fact, if seven decades have taught me anything, it has taught me to look very skeptically at such broad-brush allegations. Usually, the more outrageous the alleged conduct, the less credible the allegation.

At this point in the lawsuit, the Court assumes that the plaintiffs’ allegations are entirely correct and provable. It asks, in deciding the defendants’ motions to dismiss, whether the complaints, if true, state a claim that would justify granting the plaintiffs the relief they seek.

Here, most of the plaintiffs’ complaints didn’t hold water. We’re going to focus on only one of those beefs, the count on spite fences.

Small v. Anchorage Homeowners Ass’n, LLC, Case No. 1:18-cv-01605 (S.D.Ind. March 21, 2019), 2019 U.S. Dist. LEXIS 47842; 2019 WL 1317636. Art and Lynette Small bought a condo in a development overseen by the Anchorage Homeowners Association. They bought the condo through a limited liability company they had set up, Executives LLC. Their neighbors were Trudy and Brad Johnson.

The Smalls’ overarching complaint was that Trudy and Brad embarked on a campaign to force the Smalls out because the Johnsons thought (1) the Smalls were Jewish; and (2) the Smalls were renters, not owners. It must be a doozy of a complaint, alleging as it does all manner of slights, humiliations and vigilantism, all intended to run the Smalls out of the development. But the count we’re focusing on today is the allegation that the Johnsons erected a “spite fence.”

The Smalls sued the Johnsons and the Homeowners Association in federal court, alleging a number of federal claims. In such a case, under what is known as “pendant jurisdiction,” a federal court may also hear state claims arising from the same facts. One such state claim brought by the Smalls was that in May 2016, Trudy accused Art “of being a racist, of engaging in Fair Housing Act violations, and repeatedly called him an extremely offensive anti-Semitic slur” – specifically, “Jew Face” – in front of his friends and potential clients. A few days later, the Smalls alleged, the Johnsons installed a “large wooden wall” which obstructed the Smalls’ view and interfered with their enjoyment of their property. The Smalls claimed the Homeowners Association approved the wall despite the fact that it did not comply with the Homeowners Association and Hamilton County restrictions.

The Johnsons and the Homeowners Association both moved to dismiss the count.

Held: The claim that the Johnsons built a “spite fence” was dismissed.

Under Indiana Code 32-26-10-1 – the state’s “spite fence” provision – a “structure in the nature of a fence unnecessarily exceeding six (6) feet in height, maliciously: (1) erected; or (2) maintained; for the purpose of annoying the owners or occupants of adjoining property, is considered a nuisance.” An owner or occupant who is injured in their comfort or enjoyment of their property that adjoins such nuisance may bring an action for: “(1) damages in compensation for the nuisance; (2) the abatement of the nuisance; and (3) all other remedies for the prevention of a nuisance.” Indiana Code 32-26-10-2.

Common law recognizes no such right, and thus, the statute, which is “in derogation of the common law… [must] be strictly construed.” If the fence in question does not meet the strict requirements of the statute, the Court held, it is merely subject to the common law of nuisance, under which a fence is only a nuisance if it encroaches on the adjoining landowner’s property.

The necessary elements of a claim under the spite fence statute are that: 1) the fence must exceed six feet, 2) the excessive height must be unnecessary, and 3) the fence must have been maliciously erected to annoy adjoining property owners or occupants. No matter how malicious or excessive a fence is, the Court said, it does not violate the statute if it is six feet or less in height. On the other hand, a maliciously erected fence that is more than six feet tall is not cured by a local permit because state law trumps municipal ordinances and regulations.

Here, the Court ruled, the Smalls’ complaint is facially deficient because it fails to allege the wall exceeds six feet. In fact, the complaint does not include any height allegation, only that the wall comes to roughly 13 feet from the Smalls’ front porch.

“Thus,” the Court held, “the allegations fail to meet the statutory height requirement or the encroachment requirement of common law nuisance. For this reason, [the Smalls’] claim is dismissed.”

– Tom Root

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Case of the Day – Thursday, September 4, 2025

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MRS. PALSGRAF GOES TO THE CITY BY THE BAY

We all remember Mrs. Palsgraf, the unfortunate matron injured at the Long Island railroad station.  Mrs. Palsgraf was waiting for a train, standing some distance from the platform. On the platform, an overzealous passenger tried to jump aboard a moving train. He lost his balance but was kept from falling by two platform guards, one of whom grabbed his arm while the other pushed him from behind.

The passenger was carrying an unlabeled box under his arm. The box fell to the tracks, some fireworks inside the unmarked box detonated, and the loud noise, somehow (no one ever really explained how), caused a set of scales standing by the station to fall on Mrs. Palsgraf.

Quick, who gets sued? Why, Long Island Railroad, of course. Not because of some obscure legal theory, but rather for the best reason of all: the LIRR had a lot of money. The guards and the passenger did not.

Every law student knows what happened. Mrs. P won $6,000 at trial, which was upheld on appeal. But then the case reached the New York Court of Appeals (the highest court in the Empire State). Renowned jurist Benjamin Cardozo wrote a 4–3 opinion that remains a staple of tort law, taught to law students nearly a century later. Cardozo ruled that the LIRR guards were not negligent because, in helping the man board, they had no duty of care to Mrs. Palsgraf because injury to her was not a foreseeable harm that could flow from aiding a man with a package. Thus, the conception that tort liability can only occur when a defendant breaches a duty of care the defendant owes to a plaintiff was born.

Palsgraf’s an amusing case, but then it’s all fun and games until someone gets hurt.  And someone sure did in today’s case, handed down by the U.S. Court of Appeals for the Ninth Circuit.

In what the Court called the events a “Rube Goldbergesque system of fortuitous linkages,” the life of a young woman was snuffed out in San Francisco by the denouement of a string of events that started with a Bureau of Land Management ranger being reassigned from the Mexican border to Montana.

Steinle v. United States, 11 F.4th 744 (9th Cir., August 24, 2021).  John Woychowski worked as a ranger for the Bureau of Land Management, part of the United States Department of the Interior, assigned to El Centro, California. While traveling to Montana by private car, John and his family stopped to enjoy a warm San Francisco night in June 2015. John parked on the street along the Embarcadero, a waterfront tourist mecca, and the family walked to a restaurant.

When they returned, they discovered that in San Francisco, “BMW” means “break my window.” The tailgate window was broken and some property was gone.

Unfortunately, the property included a nondescript backpack that contained John’s government-issued service weapon, a holstered Sig Sauer P239. The pistol did not have the BLM-issued trigger lock on it.

Four days later, a homeless undocumented immigrant named Juan Lopez-Sancherz found the handgun about a half mile from the break-in, wrapped in rags and sitting on a bench. He picked it up and fired it. The bullet ricocheted off the ground, striking and killing Kathryn Steinle. 

The political universe had a field day, Juan was an illegal immigrant, having been deported five times and with seven prior felony convictions. Not a nice guy. The kind of guy President Trump likes to talk about. The gun control people went nuts, the anti-immigrant people really went nuts, and Juan was painted as criminal excrement for whom the death penalty was too merciful a fate. When the dust settled and common sense prevailed, a jury acquitted Juan in 2019 of murder, manslaughter, and assault, and his conviction for being a felon in possession of a firearm was overturned soon after. Juan’s crime, it turned out, was gross stupidity, something that is not yet a felony.

No one knows who stole the pistol, how many people possessed it in the four days between June 27 and July 1, who took the pistol out of the holster and wrapped it in a shirt or rag (or why they did so), or how the pistol came to be left near the bench where Juan found it. But Kate’s family had to sue someone (and I won’t judge them for that, as they struggled with a horrific and unexpected loss), so they sued everyone. They sued Juan, they sued San Francisco (for being a sanctuary city that had let Juan wander free), and – of course – sued the federal government under the Federal Tort Claims Act.

The Steinles alleged that John was negligent in failing to secure his firearm properly and in leaving it, loaded, in an unattended vehicle in an urban location where the firearm could be easily stolen. The federal district court entered summary judgment in favor of the United States, ruling that John owed no duty to Kate under California law and that his actions were not a proximate cause of her death.

Kate’s family appealed.

Held, the government was not liable because John was not negligent.

Under the FTCA, the United States may be held liable for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government… under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

So far, so good. But in California, to prove negligence, a plaintiff in a negligence suit must demonstrate that the defendant had a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.

Legal causation has two components: cause in fact and proximate cause. Because the factual causes of an event may be traced far into the past, the Court ruled, the law imposes additional limitations on liability. Those additional limitations relate not only to the degree of connection between the conduct and the injury, but also to public policy. The doctrine can bar liability even when the defendant’s conduct is a factual cause of harm, depending on the manner in which the injury occurred or the extent to which the ultimate harm is attenuated from the breach of duty alleged.

Here, the connection between John’s storage of the pistol in his vehicle and Kate’s death “is so remote that, as a matter of law, his acts were not the proximate or legal cause of the fatal incident,” the Court held. “Several events—many of which remain unknown—intervened after John left the loaded pistol in his vehicle: (1) someone broke into the locked vehicle; (2) someone stole a seemingly innocuous backpack; (3) someone found a pistol in that backpack; (4) someone removed the pistol from its holster, then wrapped it in a cloth and abandoned or lost it a half-mile away; (5) Lopez-Sanchez picked up the firearm, four days later, and fired it, apparently aimlessly; and (6) the bullet ricocheted off the ground and struck Kate.”

There were no winners in this one. Kate is dead, her parents grieve, and Juan served five years before being acquitted and deported yet again.

No winners. Except for the United States government, which did not have to pay. And BLM Ranger John Woychowski. He got promoted.

– Tom Root