Tuesday, November 27, 2018
Easements are a commonly encountered in agricultural settings. An easement does not give the holder of the easement a right of possession, but a right to use or to take something from someone else's land. To the holder of the easement, the easement is a right or interest in land, but to the owner of the real estate subject to the easement, the easement is an encumbrance upon that person's estate.
Easements may take several forms. Most easements are affirmative that entitle the holder to do certain things upon the land subject to the easement. A negative easement gives its holder a right to require the owner of the land subject to the easement to do or not to do specified things with respect to that land. For example, a negative easement could be a right-of-way, a riparian right, a right to lateral and subjacent support (see, e.g., Ohio Rev. Code. §§723.49-.50), a surface water flowage easement, a manure easement, a soil retention easement or an easement to be free from nuisances, just to name a few.
But, does the law recognize a negative easement for light, air or view? It’s an interesting question, and the issue comes up in ag settings more often than would be suspected. It’s also the topic of today’s post – whether the law recognizes a negative easement for light, air or view.
General rule. Negative easements are synonymous with covenantal land restrictions and are similar to certain “natural rights” that are incidents of land ownership. However, most American courts reject the English “ancient lights” doctrine. That means that American courts typically refuse to recognize a negative easement for light, air and view. This was the result, for example, in Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So.2d 357 (Fla. App. 1959). In the case, a hotel’s additional floors added to the top of the existing building cast a shadow over an adjacent hotel’s beach frontage. The complaining hotel asserted that the other hotel couldn’t add the additional floors to its building because the adjacent hotel had a negative easement over the other hotel’s property for light, air and view. The court rejected the claim on the basis that American law does not recognize a negative easement for light, air or view.
Exception. However, if light, air or view is obstructed out of spite or malice, an American court might determine that a negative easement exists. In other words, if a property owner's interference with a neighboring owner's light, air or view is done maliciously, the court may enjoin the activity as a nuisance. For example, in Coty v. Ramsey Associates, Inc., 149 Vt. 451, 546 A.2d 196 (1988), the court enjoined the defendant's “spite farm” on the basis that it constituted a nuisance. There was no question that the hog “farm” at issue was created purely out of maliciousness against an adjoining landowner. Thus, the court held that the adjoining landowner that had been harmed held a negative easement over the hog “farm” for light, air and view. In addition to the actual damages that the hog farm created, the court imposed substantial punitive damages. The conduct of the hog farm owner was incredibly egregious.
In Rattigan v. Wile, 445 Mass. 850, 841 N.E.2d 680 (2006), the parties were adjoining property owners. The defendant had outbid the plaintiff for the tract that the defendant purchased. That fact upset the plaintiff and the plaintiff then successfully challenged the defendant’s building permit. The result was that the defendant could not build on his tract as desired without being in violation of applicable zoning bylaws. The defendant retaliated against the plaintiff by flying his helicopter near the plaintiff’s property and otherwise harassing the plaintiff. The plaintiff sued, and the court entered an injunction against the defendant that also barred the defendant from putting portable toilets on the property line between the parties. The defendant appealed, claiming (in essence) that the plaintiff did not have any negative easement for light, air or view over the defendant’s property. However, the appellate court affirmed the trial court’s order of injunctive relief on the basis that the defendant’s conduct constituted a nuisance. The appellate court also determined that the proper measure of damages was the loss of rental value ($318,000 plus some additional out-of-pocket costs) attributable to the plaintiff’s property. The appellate court, however, modified the trial court’s permanent injunction so as to not limit the defendant’s legitimate uses of his property.
The issue of maliciousness or “spite” often arises with respect to fences. In 1887, Massachusetts enacted one of the earliest “spite fence” statutes in the United States which declared such a fence to be a private nuisance. Mass. Gen. Laws Ch. 348, §1 (1887); presently codified as Mass. Ann. Laws Ch. 49, §21. A “spite” fence is one that is an overly tall structure that is constructed with no legitimate purpose other than to obstruct an adjoining landowner’s light, air or view. For example, in Rice v. Cook, 115 A.3d 86 (Maine 2015), the parties disagreed over the boundary to their adjoining tracts. Neither party knew where the actual boundary was until a survey was completed in 2008, but the survey result upset the defendant and he erected what the court deemed to be a “spite fence” under Maine law which specifies that “[a]ny 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.” Me. Rev. Stat. Ann. Tit. 17, §2801. The court noted that the evidence clearly demonstrated that the defendant built the fence with the intent to annoy the plaintiff and interfere with the plaintiffs’ use of their property.
A row of trees can also be a “spite fence.” Unless there is some good reason to plant tall trees on a property line with the knowledge that the trees will block a neighbor’s view, the trees could be deemed to be a malicious spite fence and the trees ordered removed. For example, in Wilson v. Handley, 97 Cal. App. 4th 1301 (2002), the plaintiff built a second story addition to her log cabin. The defendant, a neighbor, then planted a row of evergreen trees parallel with the property line. When the trees became mature in the future, they would block the plaintiff’s mountain view from the second story addition. Because the evidence disclosed that the trees were planted to purposely block the view, they were deemed to be a “spite fence” and a private nuisance in violation of California law. Under California law, any fence or other structure in the nature of a fence (such as trees) that exceeds 10 feet in height and is maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance. See, Cal. Civ. Code §6-10 841.4. See also Vanderpol v. Starr, 194 Cal. App. 4th 385 (2011).
The California case is interesting for the fact that the court determined a “spite fence” existed even though the trees at issue would not obscure the view until some future date, if at all. The court noted that some varieties of trees can grow quickly Normally there can be no claim for an “anticipatory nuisance.” In other words, the law does not recognize an action for a nuisance until the nuisance actually occurs. For example, in Blackwell v. Lucas, No. 2017-CA-01492-COA, 2018 Miss. App. LEXIS 582 (Miss. Ct. App. Nov. 20, 2018), the defendants planted some plants and shrubs in the front yard of their home. Their neighbors, the plaintiffs, sued on the basis that the plants and shrubs caused them “mental pain and suffering.” Their complaint sought damages and preliminary and permanent injunctive relief requiring the removal of the plants and shrubs or to restrict their growth and height so that the plaintiffs’ view of the ocean and surrounding areas was not blocked. The defendants motioned to dismiss the case on the basis that the complaint failed to allege a violation of any legally cognizable right. The trial court dismissed the case.
On appeal, the appellate court noted that the plaintiffs’ only allegation of harm was that, if allowed to grow, the plants and shrubs would obstruct their view across the defendants’ property at some undetermined future date. The plaintiffs claimed that this potential future “harm” gave them a viable cause of action for a “spite fence” or nuisance. The appellate court stated that the plaintiffs had no common law or statutory right to an unobstructed view across their neighbors’ property. Nor did they have a right to dictate the type or placement of the defendants’ shrubs. In support of their claim, the plaintiffs cited the only reported Mississippi case concerning a “spite fence.” In that case, the court ordered the removal of a fourteen-foot-high "spite fence." That court relied on a treatise that defined a "spite fence" as "a structure of no beneficial use to the erecting owner or occupant of the premises but erected or maintained by him solely for the purpose of annoying the owner or occupier of adjoining property.” In this case, however, the appellate court pointed out that because the prior opinion was a 5-5 decision there remained no precedent for a “spite fence” claim under Mississippi law. Moreover, the appellate court declined to recognize a new cause of action for a “spite fence” in a case that did not even involve a traditional fence. The appellate court also pointed out that the plaintiffs’ complaint failed to state a claim for the additional reason that it failed to allege that the “plants and shrubs” actually obstructed their view. The complaint merely asserted that, if allowed to grow, the shrubbery would obstruct their view at some unspecified point in the future. Thus, the appellate court held that the plaintiffs’ complaint failed to state a claim upon which relief could be granted and affirmed the trial court’s decision.
American law generally does not recognize a negative easement for light, air or view. But, if the facts of a situation reveal that light, air or view has been obstructed with the intent to cause harm to an adjoining landowner, then a legal right may be impacted. The obstruction can take the form of a traditional fence, trees and shrubs, or the deliberately improper operation of a farm. If whatever is done, is done with malicious intent, a negative easement may be found to exist.