What is a fence?

[mpallamary]

I am involved in a case here in San Diego and I have been researching what a fence is as it relates to CC 841.4. I thought some of my friends would find this case interesting. As an FYI, here is what the Civil Code says.
*******************************

CIVIL CODE
841.4. 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. Any owner or occupant of
adjoining property injured either in his comfort or the enjoyment of
his estate by such nuisance may enforce the remedies against its
continuance prescribed in Title 3, Part 3, Division 4 of this code.

[goodgps]

The .doc wouldnt show itself.

An old civil code, stated that a fence was to keep cattle in and people out, but now days there are other considerations like sun/air and view.

I thought that any fence over 8 feet tall had tobe engineered. Wouldnt a permit have been obtained. i guess not since there's a problem.
Good luck.

Wouldnt you're only concern be the location and height of the structure "fence" I'm not sure you need to define a fence ???

Dont let attorneys get you hooked into anything that could bite you later.

(sorry I cant look at the file)

:~(

[E_Page]

Had the same problem with the doc. It seems to be corrupted. Took a while to open, and then did so as an empty document.

[Lehmann]

That was one of mine, we prevailed in the initial case. Then when appealed, we were caught off guard by the judge ruling that the trees themselves were a structure/fence. The view of Mt. Shasta was evidently very worthy of protecting. It was to bad one could not build a one way fence.

[LA Stevens]

forum as well with no success!

[Jim Frame]

"That was one of mine, we prevailed in the initial case. Then when appealed, we were caught off guard by the judge ruling that the trees themselves were a structure/fence."

The appellate court found that a row of trees *can* be a spite fence, but it did not rule on that question from the original case. Instead, it sent the case back to the lower court for a ruling on the matter. What did the lower court find upon review?

P.S. A PDF of the case can be found here:

http://members.dcn.org/jhframe/Wilson%2 ... (2002).pdf

.

[E_Page]

I couldn't post it in either PDF or in DOC format. I even tried starting a new thread to see if this one might have been corrupted. No luck.

In the process, I found out that this forum will not recognize the DOCX format utilized by MS Word 2007.

Crissy has been emailed, so hopefully whatever the issue is will be found and fixed fairly soon.


It seems that enough of us have now read the case to have some discussion though, so...

The appellate court disagreed with the trial court, which ruled that a row of planted trees cannot be a fence as it is not a structure, by strict definition, as addressed by CC §841.4. The appellate court decided that a broader definition of structure is appropriate when interpreting this statute. A structure is made up of things artificially arranged in a particular order for a particular purpose. Trees artificially arrnged in a row or pattern as a barrier fit this definition. Therefore, a row of trees *CAN* be considered a fence for purposes of §841.4, providing other conditions are met.

The appellate court was clear that they WERE NOT declaring that the Handleys' trees, in this case were a fence pursuant to §841.4, but that the row of trees should not have been precluded from being defined as a fence based upon the legal arguments presented.

The court also said that in order to fall under the purview of §841.4, the primary motive for placing the row of trees (or any fence fitting the statutory description) had to be to annoy Wilson. If the primary consideration was to protect Handley's privacy, then the trees, although an apparent annoyance to Wilson, cannot be forcibly removed pursuant to this statute.

IMO, the appellate court in remanding the case back to trial, left the door wide open for the trial court to come to the same effective result after considering the other factors.

The trial court could still find that, although a row of trees COULD BE considered to be a fence, that these trees do not constitute a fence. But they did need to consider that they could be.

The trial court could also find that, even if the trees in this case are a fence, that they are not a nuisance under this statute if malicious intent was not primary in the Handleys placement of the trees.

Basically, the appellate court instructed the trial court to first consider if these trees are a fence according to the broader parameters defined by the appellate court, and then, if the trial court finds these trees to fit within that definition, to treat this case as any other nuisance fence case.

The point of this case is that just about anything placed as a barrier along a boundary can be (not necessarily "is", but "can be") considered to be a fence.

For us, when considering lines of occupation in analyzing a boundary, something like a row of trees could be considered just as one might consider a boundary fence. Many of us would have done that anyway. But now maybe we'll look just a little closer.

Certainly now, if we are hired to locate fences and other barriers near boundaries, we will not overlook the trees. There has to be something in there about not overlooking the fences for the trees, but I can't fully tie it in.


So Frank, what happened when this went back to trial?

[land butcher]

Most areas have a 6ft height limit to any fence, 3 foot in the front. People here are planting trees and letting them grow to block 2 story home view into their yard. Sone, on La Colina in N Tustin have planted trees in the front and they are now over 12 feet high.
With that type of a fortress they could be victims of a home envasion robbery/murder and no one would ever know.
Of course they could have sex in the front yard and no one would know that either.

[mpallamary]

Hi guys,
Apparently the website server has been down and is in the process of being fixed. I tried uploading as a *.doc file and *.pdf file.
I am going forward with a case based upon this ruling. I would like to learn more about it.
Jim, any thing else to add here. This sounds pretty wild.

[mpallamary]

Here is an update to my tree case. We went to court this week and the judge granted an injunction for the benefit of my client barring the neighbor from obstructing her view of downtown San Diego based upon the arguments I developed based upon the Wilson-Handley case. I was unable to post it previously as the CLSA website was down. I have attached a copy of the case.

My client and her neighbor got into an argument over the property line seven years ago. We went to trial and prevailed over a bad survey and quieted title to two feet of land. This last six months, the neighbor started construction and to spite my client, planted a row of trees every 4 feet in a very definite pattern clearly to obstruct her views.

The judge agreed with us by utilizing the arguments that the trees were in reality "spite trees." He also started dumping dog feces adjacent to my client's open deck. Nice.

Check the case out as it is very interesting and in our situation, it proved to be a valuable tool in my burgeoning box of landline law. Ah, yes, a discreet alliteration.

Happy holidays all.

[land butcher]

Congrats on the win

[Lehmann]

After remand the court issued the final decision. A couple of weeks ago I was in the area and visited to the site and found the trees cut and trimmed so that they are in essence a tall hedge.

[mpallamary]

Thanks! I appreciate the update. An interesting case.

[Lehmann]

How far away (if limited at all) from an already fenced property line would you speculate the courts would still find a row of trees to be a spite fence? or do you think distance is irrelevant?

[Dave Lindell]

How about how high?

I would say the height of the trees was more relevant than the nearness to the property line or fence line. Isn't a spite fence defined by its height?

I have always said, "If you hate your neighbor, plant bamboo." That stuff grows to unbelievable heights!

[mpallamary]

I think Willard has a good point. Intent is paramount. In addition to the bushes, there was a so-called tool shed also that served no purpose and it was a bit too tall. I think the operative word is SPITE. Conduct imparts intent. I had another one where the neighbor painted the side of the building black and still another where the neighbor painted profanities on the side of the building and on the roof that glowed in the dark! You couldn't see the letters during the day but they showed up at night.
Insane.

[PLS7393]

Glow in the dark paint . . . Nice!!!