Dowdell v. Bloomquist

FLANDERS, Justice,

concurring in part and dissenting in part.

Although I concur with that portion of the majority opinion affirming the Superi- or Court’s finding that the spite-fence statute, G.L.1956 § 34-10-20, applies to this case, I would hold that the Superior Court *834did not have the power to issue an injunction in favor of the plaintiff for the defendant’s violation of that statute because it provides only for “an action to recover damages.” Thus, I conclude that the trial justice erred in awarding injunctive relief because the applicable rules of statutory construction require us to strictly construe statutes such as this one — granting rights and remedies not recognized at common law — and to refrain from inferring causes of action and statutory remedies that are not contained in the express language of the statute. Accordingly, it is up to the General Assembly, not this Court, to provide a cause of action for equitable relief to parties entitled to recover damages under the spite-fence statute.

The spite-fence statute, § 34-10-20, specifically states that a party seeking relief pursuant to its terms “may have an action to recover damages for the injury.” (Emphasis added.) It does not say that any injured owner or occupant may have an action to obtain equitable or injunctive relief for any such injury. Citing this limited right to recover damages for a violation of the spite-fence statute, defendant argues that the trial justice erred in awarding injunctive relief to this plaintiff when the statute creating such a right provided plaintiff with no such cause of action or remedy. I agree with this conclusion.

“It is well settled that when the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings.” Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996) (Emphases added.) As defendant correctly notes in his brief, the plain and obvious meaning of “an action to recover damages” does not include an equitable remedy such as an injunction. Although the trial justice conclusorily said that he believed a damages remedy “cannot compensate [plaintiff] for this spiteful act” and that “[ejquitable relief is far more appropriate,” the evidence in this case showed that the spite fence in question caused a permanent and quantifiable diminution in the value of plaintiffs property, one that could be remedied via an award of damages.

More importantly, however, even if such a damages remedy was inadequate, that fact alone would not warrant a court’s awarding relief that the General Assembly declined to make available to injured parties when enacting the statute in question. Sindelar v. Leguia, 750 A.2d 967, 970 & n. 1, 971-72 (2000) (per curiam) (strictly interpreting wrongful death act, which, in derogation of common law, permitted certain enumerated members of decedent’s family to pursue an action to recover “pure economic damages” for wrongful-death, but no additional type of relief).

In addition, it is well settled that we strictly construe statutes such as this one that establish rights not recognized at common law or that operate in derogation of the common law. Sindelar, 750 A.2d at 970; Providence Journal Co. v. Rodgers, 711 A.2d 1131, 1134 (R.I.1998) (“[Legislation ‘that is in derogation of the common law' is subject to strict construction.”); Accent Store Design, Inc., 674 A.2d at 1226 (strictly construing public-works-bonding statute establishing rights not recognized at common law). In Sindelar, 750 A.2d at 970, we strictly interpreted the wrongful death act because, like § 34-10-20, its provisions were in derogation of the common law. In that case, the question was which surviving family members were entitled to obtain relief for a violation of the act and what type of remedy were they entitled to obtain. Sindelar, 750 A.2d at 969-70. Noting that the plain statutory language permitted decedent’s father to recover *835damages despite his being an absentee parent, we refused to carve out an exception to the act by judicial fíat. Id. at 971. Nor did we permit recovery for loss of consortium or for any other type of relief other than the “pure economic damages” that the statute provided for, id. at 972,— however inadequate or insufficient such “pure economic damages” might prove to be. Here, as in Sindelar, “our assigned task is simply to interpret the [a]ct, not to redraft it.” Id.

In this case, the spite-fence statute creates a right not recognized at common law because it deems to be a private nuisance a fence or a fence-like structure that unnecessarily exceeds six feet in height and that “is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property.” Section 34-10-20. As this Court observed in Musumeci v. Leonardo, 77 R.I. 255, 260, 75 A.2d 175, 178 (1950), under the common law

“[a] landowner has no right to the light and air coming to him across his neighbor’s land. True, if the light and air be shut off damage may well result to his property for residential purposes, as is alleged here, but it is damnum absque injuria. It is damage which the law does not recognize because there is no injury. Where there is no right, a deprivation works no injury.”

Courts should not infer causes of actions and remedies that are not expressly provided for in a statute such as this one that creates a right and a remedy that was not available at common law. Indeed, as a general rule, “[w]hen a statute ‘does not plainly provide for a private cause of action * * * such a right cannot be inferred.’” Stebbins v. Wells, 818 A.2d 711, 716 (R.I. 2003) (per curiam); see also Pontbriand v. Sundlun, 699 A.2d 856, 868 (R.I.1997) (refusing to find implied right of action under statute affording no personal remedy).

For example, in Stebbins, 818 A.2d at 716, this Court refused to infer a private cause of action when interpreting G.L.1956 § 5-20.8-5(b), which required that every purchase and sale agreement for residential real estate contain an acknowledgement that a completed real estate disclosure form had been provided to the buyer by the seller. The Court noted that this statute expressly provided a specific remedy: namely, that each violation of the statute subjected the seller or his or her agent to a civil penalty in the amount of $100. Stebbins, 818 A.2d at 716. Given that the statute expressly provided for a particular remedy- — a civil fine for violations of the act, but not a private lawsuit for damages — this Court refused to permit the buyer to sue for damages under the statute. Id.

Similarly, in In re John, 605 A.2d 486, 487-88 (R.I.1992), this Court refused to infer a remedy not expressly provided for in the statute when interpreting G.L.1956 § 15-7-7, which allowed state agencies to petition the court for termination of parental rights, but did not afford private individuals the same right. Noting that this statute operated in derogation of the common law — in that it terminated the natural parent’s common-law right to associate with his or her own child — this Court strictly interpreted the statute and refused to allow a mother to obtain a remedy seeking termination of her former husband’s parental rights when the statute did not expressly provide for such a remedy. In re John, 605 A.2d at 488.

By a parity of reasoning, in this case we should not infer a right to seek and obtain equitable relief for a violation of the spite-fence statute because, like the statutes at issue in Sindelar, Stebbins, and In re John, the statute already expressly pro*836vides a remedy — albeit not one for the type of relief that plaintiff would prefer, but one “to recover damages for the injury.” Section 34-10-20.

Moreover, the mere fact that the statute deems the creation of a spite fence to constitute a private nuisance does not imply that the General Assembly intended for an equitable remedy to be available for such a nuisance when the statute fails to provide for such relief. Deeming the erection of a spite fence to constitute a private nuisance only suffices to establish the perpetrator’s civil liability for violating the statute. But it does not speak to what civil remedy is available for creating such a private nuisance, especially when an equitable remedy was not available to abate a spite fence at common law. Moreover, if the General Assembly’s purpose had been to incorporate any and all remedies that might be available to remedy a private nuisance at common law, why would it have specified in the statute that an aggrieved party may have an action to recover damages for the injury? Is this not a classic instance of expressio unius est ex-clusio alterius (“to express or include one thing implies the exclusion of the other”)? If the General Assembly had intended to provide for both equitable and legal relief, why would it not have said so expressly, instead of providing only for a damages action? When the General Assembly wants to empower courts to award equitable or injunctive relief, in addition to damages, for the violation of a statutorily created right, it certainly knows how to do so. See, e.g., Deceptive Trade Practices Act, G.L.1956 § 6-13.1-5.2(b) (“In any action brought under this section, the court may in its discretion order, in addition to damages, injunctive or other equitable relief.”). As this Court observed many years ago in Henry v. Cherry & Webb, 30 R.I. 13, 37, 73 A. 97, 107 (1909), “[t]he function of adjusting remedies to rights is a legislative rather than a judicial one, and up to the present time the legislature of this [sjtate has omitted to provide a remedy” for the right in question. When, as here, “a statute expressly provides [a] remed[y], courts must be extremely reluctant to expand its sweep by augmenting the list of prescribed anodynes.” Sterling Suffolk Racecourse Limited Partnership v. Burrillville Racing Association, Inc., 989 F.2d 1266, 1270 (1st Cir.1993). Instead, a court “should ordinarily conclude that the legislature provided precisely the redress it considered appropriate,” and should not expand the remedies available. Id.

The majority relies on Rice v. Moorehouse, 150 Mass. 482, 23 N.E. 229, 229 (1890), for the proposition that both damages and injunctive relief are appropriate sanctions to impose on the violator of a spite-fence statute. But the language in the Massachusetts spite-fence statute that the court construed in Rice — namely, Mass. Gen. Laws ch. 348, §§ 1-2 (1887)— was markedly different from the language of § 34-10-20.11 Chapter 348, § 2 of the Mass. Gen. Laws provided that one injured by a spite fence had “an action of tort for the damage sustained thereby, and the provisions of chapter one hundred and eighty of the Public Statutes concerning actions for private nuisances shall be applicable thereto.” (Emphasis added.) As *837the Rice court noted, chapter 180 specifically “authorized the court * * * to enter judgment that the nuisance be abated and removed.” Rice, 23 N.E. at 229. Therefore, unlike the provisions of § 34-10-20, the text of the statute at issue in Rice specifically provided that a law authorizing the abatement and removal of a private nuisance “shall be applicable” to the statutorily created right of action for spite fences. See Mass. Gen. Laws ch. 348, § 2. Here, § 34-10-20 contains no such reference to a statute authorizing the enforcing court to abate or remove the nuisance.

In addition, the other cases the majority cites for support are inapposite because they interpret either a statute that, unlike § 34-10-20, provides specifically for abatement of the offending structure, e.g., Horan v. Byrnes, 72 N.H. 93, 54 A. 945 (1903) (interpreting a statute that provided for both damages and abatement of a spite fence), or they do not interpret a spite-fence statute at all; rather, they merely establish a rule of law through common-law adjudication that deems a spite fence to be a nuisance, with the court judicially providing whatever remedies may be available at common law to abate such a private nuisance. See Sundowner, Inc. v. King, 95 Idaho 367, 509 P.2d 785, 785-87 (1973) (adopting as a rule of common law that a spite fence is a nuisance, and as such, holding that the lower court did not err in abating and enjoining the structure); Haugen v. Kottas, 307 Mont. 301, 37 P.3d 672, 674 (2001) (holding as a matter of common law that the erection of a spite fence will give rise to an action for injunc-tive relief and damages); Racich v. Mastrovich, 65 S.D. 321, 273 N.W. 660, 663 (1937) (adopting a “common-sense view” that a spite fence entitles the plaintiff to injunctive relief). In this state, however, as we have seen, a spite fence was not a private nuisance at common law, and the statute deeming it a private nuisance provides only for a damages remedy.

Given that the General Assembly easily could have included a cause of action for equitable remedies in the spite-fence statute, we should deem this omission as evincing a legislative intent to limit a spite-fence claimant’s remedy to “an action to recover damages.” Section 34-10-20. Cf. Accent Store Design, Inc., 674 A.2d at 1226 (“The General Assembly could easily have exercised its power to create a cause of action for the failure to bond by simply adding a sentence or a phrase to the statute.”); see also In re John, 605 A.2d at 488 (“If the Legislature intended to permit a private individual to file a petition to terminate parental rights under this statute, it would have clearly expressed this intent when it revised the statute in 1980.”).

Also, the General Assembly has had more than fifty years to act since the 1950 Musumeci decision, in which this Court indicated that the common law provided no equitable relief for the erection of a spite fence, and noted that the spite-fence statute only provided for a damages remedy. Nevertheless, the General Assembly has declined to expand that statute to provide for equitable relief. “But inaction upon the part of the legislature, however long continued, can not confer legislative functions upon the judiciary.” Henry, 30 R.I. at 38, 73 A. at 107. Accordingly, a party seeking an injunction under the spite-fence statute should petition the Legislature, not this Court, for relief, because for this Court to create such a cause of action and remedy “would be interpretation by amendment” of the statute. Rhode Island Federation of Teachers, AFT, AFL-CIO v. Sundlun, 595 A.2d 799, 802 (R.I.1991). In other words, “the remedy is to be found in the state house not the courthouse.” Malinou v. Board of Elections, 108 R.I. 20, 35, 271 A.2d 798, 805 (1970).

*838Conclusion

This Court should reverse that portion of the Superior Court judgment awarding plaintiff injunctive relief. The Superior Court improperly awarded relief that the spite-fence statute does not authorize. Also, our rules of construction require us to accord statutes their plain and ordinary meaning, to strictly construe statutes such as this one that grant rights not recognized at common law, and to refrain from inferring causes of action and providing remedies that are not contained in the express language of the statute. Accordingly, it is up to the General Assembly, not this Court, to expand the remedies available to parties seeking relief under the spite-fence statute.

. The majority quotes the text of Mass. Gen. Laws Ann. ch. 49, § 21 (West 1994) to buttress its conclusion that the language in the Massachusetts statute is "strikingly similar” to the language of G.L.1956 § 34-10-20. But the statute that the Rice court interpreted was not the 1994 law quoted by the majority but an earlier spite-fence statute — namely, Mass. Gen. Laws ch. 348, §§ 1-2 (1887) — one that expressly incorporated an abatement and removal statute for remedying a nuisance that is conspicuously absent from the provisions of § 34-10-20.