California has had a spite fence law since 1885, and until very recently, the courts did not consider whether trees could be a “fence”.
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.
In a case of first impression, Wilson v. Handley involved neighbors in Yreka County. Wilson was concerned that the row of evergreen trees the Handley’s planted would block the property’s view of Mount Shasta. The Court found that yes, the row of trees could be considered a fence. [Wilson v. Handley 119 Cal. Rptr. 2d 263. (2002).]The decision went no further, and so whether or not Ms. Handley’s testimony about needing more privacy would be found credible or whether the element of maliciousness required by the statute was satisfied went unanswered in the appellate decision.
California’s spite fence statute has a number of elements in it. The fence has to be “unnecessarily” taller than 10 feet. It’s unclear what would meet that standard. Trees are inherently problematic because without trimming, they can obviously grow beyond 10 feet tall.
Also, the fence has to be “maliciously erected” or with “the purpose of annoying the owner”. However, what facts would rise to the level of this type of willful intent?
Some years after the Wilson decision, California saw its second spite fence case involving trees. In Vanderpol v. Starr, the neighbors had a tree trimming arrangement that worked for many years. Vanderpol was to use a licensed and bonded service and Starr consented to the trimming of the eucalyptus trees to a height Ms. Starr dictated. At some point in 2004, Starr refused to allow Vanderpol to trim the offending trees (on Starr property) and Starr planted 20 pine trees and 65 Italian cypresses, ostensibly for privacy reasons. At trial, Vanderpol prevailed and on appeal, the court spent more of the analysis on whether Vanderpol suffered injury “either in his comfort or the enjoyment of his estate” as required by the spite fence statute. Instead, the trial court had found he suffered economic injury to the tune of $57k, but had made no finding on his loss of comfort or enjoyment, which on appeal, was identified as a separate and necessary element in order to prevail under the spite fence statute. [Vanderpol v. Starr, 194 Cal. App. 4th 385 (2011).] For further details on this case, see also http://bayarearealestatelawyers.com/neighbor-issues/do-trees-qualify-as-a-fence-under-the-california-spite-fence-statute
Once again, the court did NOT address the malicious requirement at all, because the issue in that case was about whether there was injury. However, one could infer that the subsequent planting of 85 trees could rise to the level of either maliciousness or the intent to annoy the neighbor.
CONCLUSION: As a practical matter, it is always difficult to prove intent or ill will and would be heavily fact based. Only discovery would reveal if a neighbor’s conduct was malicious or based on the intent to annoy a neighbor. Certainly, most parties are likely to cite increased privacy as their reason for wanting to have taller rows of trees. In some cases, municipal ordinances may govern the height of fences, and so the conduct of the planter may also be subject to scrutiny from the city or county.
If you are involved in a dispute over a boundary line or you believe the neighbor’s “privacy screening” has gone too far, please contact Brewer Offord & Pedersen LLP at 650.327.2900 or on the web at www.brewerfirm.com.