ALBERINO v. Balch

Skoglund, J.,

¶ 15. dissenting. It is not that I doubt my colleagues’ aesthetic sensibilities, but rather their understanding of spite-fence laws, and their origin and purpose. By affirming the trial court, the majority has entered into the domain of taste and temperament, a treacherous land fraught with disagreement. The trial court based its decision largely on aesthetics, while disregarding express statutory requirements governing spite fences. Its findings do not support an application of Vermont’s unnecessary fence statute, 24 V.S.A § 3817, or a conclusion that Alberino’s fence is a private nuisance. While the majority acknowledges the paucity of the trial court’s findings, it nonetheless affirms, making the necessary findings itself for the first time on appeal. I would reverse the trial court’s decision. See Cooley Corp. v. Champlain Valley Union High Sch., 144 Vt. 341, 343, 477 A.2d 624, 626 (1984) (explaining that the trial court, not the Supreme Court, must find facts essential to the case, and reversing where the trial court failed to do so). An ugly fence is not necessarily an unlawful one. I dissent.

¶ 16. The trial court did not conclude that Alberino erected her fence to annoy *593Baleh in violation of 24 V.S.A. § 3817, nor did it find that the fence obstructed Balch’s view or deprived him of light or air as required by §3817. Instead, the court found only that the fence was an “ugly wall,” easily viewed from Balch’s yard when Baleh mowed his lawn, but barely visible from Alberino’s house or yard. It found that the fence served no objective purpose — it did not keep noise out, it would not keep small dogs in. Even more troubling to this writer, the trial court decided, notwithstanding Alberino’s stated intention to protect her privacy by fencing her property, that the fence did not meet that purpose. The court then defined a spite fence using case law from other jurisdictions, but it did not conclude that Alberino’s fence fit its definition. It similarly cited, but did not apply, Vermont’s unnecessary fence statute. The court concluded only that Alberino’s failure to paint her fence suggested her indifference to the negative visual effect of the fence on Baleh. Section 3817 does not require Alberino to consider the aesthetic impact of her fence on Baleh, however, and the court’s conclusion does not provide a sufficient basis for its order compelling Alberino to remove her fence.

¶ 17. To place Vermont’s unnecessary fence statute in context, I begin with a brief discussion of a property owner’s rights at common law to light, air, and views. Under the English doctrine of ancient lights, a landowner could acquire an implied prescriptive easement in the light coming across his neighbor’s property, and he could enjoin his neighbor from interfering with his continued access to such light. See 4 R. Powell, Powell on Real Property § 34.11[5], at 34-124 (2008). This doctrine was viewed as incompatible with conditions in the rapidly developing United States, and in 1860, this Court, like other courts around the country, repudiated it. See Hubbard v. Town, 33 Vt. 295, 300 (1860); see also 4 R. Powell, Powell on Real Property § 34.11[5], at 34-125 (doctrine of ancient lights has been disavowed repeatedly by American courts); 9 R. Powell, Powell on Real Property § 68.10, at 68-47[l] (“The overwhelming consensus is that in absence of a statute or negative easement or covenant, neighboring land possessors have no rights to view, air or light over another’s land.”). Courts feared that recognizing such implied rights would unfairly prevent landowners from developing their own property if, in so doing, it would affect the flow of air or the delivery of light. See Wilson v. Handley, 119 Cal. Rptr.2d 263, 267 (Ct. App. 2002) (explaining that doctrine of ancient lights was ill-suited to conditions in United States during period of rapid growth, and noting that society had significant interest in encouraging unrestricted land development, while access to light, in contrast, had little social importance beyond its value for aesthetic enjoyment or illumination).

¶ 18. Thus, in Hubbard, this Court rejected landowner Hubbard’s claim that he was entitled to damages when his neighbor, the defendant, constructed a building on his own land next to Hubbard’s building, thereby cutting off the light to two of Hubbard’s windows. 33 Vt. at 300. Because the landowner had interfered with no right of the defendant when he constructed his own building, the Court explained, he had nothing upon which to base a claim that he had acquired a right from defendant to continued use of the light. Id. at 298-99. As the Court explained:

If a man can acquire, by use, a right to an uninterrupted enjoyment of fight under circumstances like the present, why not acquire a right to a like enjoyment of the prospect from the same windows, or to a free access of the air to the outside of his building to prevent decay, and *594many other rights of a similar and no more ethereal character? The result of which would be, if allowed, an utter destruction of the value of the adjoining land for building purposes.

Id. at 299-300. To adopt such a rule, the Court continued, “would be to recognize a principle at variance with well established rules, and one that could not be tolerated in this country.” Id. at 300. And, the Court noted, it would require landowners to build useless structures on their own property simply to block their neighbor’s light and prevent their neighbors from acquiring an implied right to continued access to light. Id. at 302. This “would lead to continual strife and bitterness of feeling between neighbors, and result in great mischief.” Id.

¶ 19. Thus, prior to 1886 when Vermont’s unnecessary fence statute was enacted, it appears that each property owner’s right to develop his own property was “virtually unlimited”; he was thought to own his property “to the center of the earth and up to the heavens.” Wilson, 119 Cal. Rptr. 2d at 267 (quotation omitted). He could “build a fence on his own land as high as he pleasefd], however much it [might] obstruct his neighbor’s light and air.” Rideout v. Knox, 19 N.E. 390, 391 (Mass. 1889). For example, in the 1870’s, when Charles Crocker sought to purchase an entire city block on San Francisco’s Nob Hill on which to build a mansion, and a local undertaker named Yung would not sell his small lot to Crocker, Crocker bought the remainder of the block and built a fence forty feet high on his property around Yung’s lot. Eventually, Yung sold his lot and Crocker procured the entire block. See Wilson, 119 Cal. Rptr. 2d at 268.

¶ 20. The question of whether a landowner also possessed the common-law right to use his property solely to spite his neighbor was unsettled, however, and subject to substantial divergence of opinion in state courts. Resolution of the question has depended largely on a state’s position “on the basic policy question of whether a person’s motive should affect his right to use his own property.” 9 R. Powell, Powell on Real Property § 62.05, at 62-45. Compare Sundowner, Inc. v. King, 509 P.2d 785, 786 (Idaho 1973) (stating that “[u]nder the so-called English rule, followed by most [nineteenth] century American courts, the erection and maintenance of a spite fence was not an actionable wrong,” and that “[t]hese older cases were founded on the premise that a property owner has an absolute right to use his property in any manner he desires”), with Barger v. Barringer, 66 S.E. 439, 439 (N.C. 1909) (recognizing view that under English common law “the erection of a fence upon one’s own land [was] not an actionable injury to one’s neighbor, although [the neighbor] may be deprived of light and air thereby, and the act may be dictated by motives of ill will,” but also recognizing decisions holding that this principle of common law “should not be held to authorize the creation and maintenance of a nuisance for the sole purpose of gratifying a most ignoble passion”).

¶ 21. Nonetheless, beginning in the late 1800s, Vermont, like several other states, enacted laws to expressly prohibit landowners from budding fences or fence-like structures to spite their neighbors. Many of these laws, like Vermont’s, included references to the obstruction of light, air, or views. See, e.g., 1894 V.S. § 4697 (“No person shall erect or maintain an unnecessary fence or other structure, more than six feet in height, for the purpose of annoying the owners of adjoining property by obstructing their view or depriving them of light or air ....”); N.Y. Real Prop. Law § 843 (McKinney 2008) (allowing action for removal of fence or fence-like structure greater than ten feet high that excludes owner or occupant of struc*595ture on adjoining land “from the enjoyment of light or air”); see also Lord v. Langdon, 39 A. 552, 552 (Me. 1898) (upholding verdict against landowner for violation of 1893 law that deemed as a private nuisance “any fence or other structure in the nature of a fence, unnecessarily exceeding eight feet in height, maliciously kept and maintained for the purpose of annoying the owners or occupants of adjoining property”); Rideout, 19 N.E. at 392 (upholding constitutionality of 1887 Massachusetts law that prohibited unnecessary boundary fences or fence-like structures that unnecessarily exceeded six feet in height that were “maliciously erected, or maintained for the purpose of annoying adjoining owners or occupiers”); Horan v. Byrnes, 54 A. 945, 949 (N.H. 1903) (upholding constitutionality of New Hampshire law, which declared that any fence, or other structure in the nature of a fence, exceeding five feet in height, erected for the purpose of annoying an adjoining owner, shall be deemed a private nuisance).

¶ 22. Even in the absence of specific legislation, courts began to hold as early as 1888 that spite structures could be considered private nuisances. Thus, in Burke v. Smith, 37 N.W. 838, 842 (Mich. 1888), the court concluded that even in the absence of a spite-fence statute, a landowner had no right to erect screens directly in front of his neighbor’s windows solely out of malice, and thereby shut out all light and air from these windows. In reaching its conclusion, the court rejected the assertions that a landowner had the legal right to use his property as he desired, and that his motivation in doing so was irrelevant. The court reasoned that no one had “a right to build and maintain an entirely useless structure for the sole purpose of injuring his neighbor,” and that the common law did not permit “a man to be deprived of water, air, or light for the mere gratification of malice.” Id. at 839-40.

¶ 23. Many other courts similarly view spite structures as an unreasonable use of one’s property, and thus, a private nuisance. See, e.g., Welsh v. Todd, 133 S.E.2d 171, 173 (N.C. 1963) (reciting rule that spite fence considered a private nuisance under North Carolina law). As Powell explains, “[wjhere the defendant’s conduct is motivated solely by malice, the use is deemed unreasonable because the conduct has no utility recognizable at law.” 9 R. Powell, Powell on Real Property § 64.03[4], at 64-19. This Court has similarly recognized that “the great majority of jurisdictions have held that where a defendant has acted solely out of malice or spite, such conduct is indefensible on social utility grounds, and nuisance liability attaches.” Coty v. Ramsey Assocs., 149 Vt. 451, 458, 546 A.2d 196, 201 (1988). Thus, while the earliest cases date to the nineteenth century, the judicial recognition of a cause of action for the removal of a spite structure — whether through a specific statute or private nuisance law, or a combination of both — represents the modern trend. See 9 R. Powell, Powell on Real Property § 62.05, at 62-47 (stating that the modern trend “favor[s] the view that a spite fence that serves no useful or beneficial purpose is unlawful,” and that an aggrieved party may file an action for damages and abatement); King, 509 P.2d at 786 (“Under the modern American rule,... one may not erect a structure for the sole purpose of annoying his neighbor.”). However, when liability is premised on the basis of a statute, as in the case at bar, the language of the statute necessarily controls.

¶ 24. With this background in mind, we turn to Vermont’s unnecessary fence statute, which has remained largely unchanged since 1886. The law prohibits individuals from erecting or maintaining a fence or other structure “for the purpose of annoying the owners of adjoining property by obstructing their view or depriv*596ing them of light or air.”3 24 V.S.A. § 3817. As noted above, the trial court in this case did not find that Alberino’s fence was erected to annoy Balch by obstructing his view, or depriving him of light or air, nor can these findings be fairly implied from the court’s decision. Indeed, it does not appear that the court even considered the specific requirements set forth in § 3817. And, based on the survey maps introduced at trial, it would have been impossible to find that the fence deprived Balch of light or ah’ since the fence is approximately one hundred and fifty feet from his house. Contrary to the majority’s assertion, it does not necessarily follow that because Alberino’s fence “served no objective purpose,” she therefore erected the fence to annoy Balch by obstructing his light, air, or view.4 Section 3817 does not require the removal of fences simply because they are unnecessary, nor does it compel the removal of a fence simply because it is an “ugly wall.” The court’s statement about Alberino’s failure to paint the fence similarly does not demonstrate that the requirements of § 3817 are satisfied. The statute expressly limits “annoyance” to the obstruction of views or the deprivation of light or air. The court’s decision, in contrast, appears to turn largely on aesthetics, and aesthetic considerations alone cannot justify ordering the removal of a fence under the plain terms of the statute.

¶ 25. To the extent that the court relied on nuisance law in reaching its conclusion, its decision is similarly flawed. To be considered a nuisance, an individual’s interference with the use and enjoyment of another’s property must be both unreasonable and substantial. Coty, 149 Vt. at 457, 546 A.2d at 201. We recognized in Coty that, “[a]s a general rule, the unsightliness of a thing, without more, does not render it a nuisance under the law.” Id. at 458, 546 A.2d at 201; see also Wernke v. Halas, 600 N.E.2d 117, 121-22 (Ind. Ct. App. 1992) (“[I]t is well-settled throughout this country that, standing alone, unsightliness, or lack of aesthetic virtue, does not constitute a private nuisance.”). While we noted in Coty that “the interferences complained of in the so-called ‘spite fence’ cases are often limited to aesthetics,” 149 Vt. at 458 n.1, 546 A.2d at 201 n.1, we did not hold that aesthetic interferences alone were sufficient to constitute a nuisance under Vermont law. See id. at 458, 546 A.2d at 201 (reasoning that the Court need not consider if unsightliness alone was sufficient to constitute nuisance because the case at issue involved more than mere unsightliness). Indeed, the spite-fence case cited in Coty as support for this proposition, Welsh v. Todd, did not turn on aesthetics —• the fence at issue in that case was one commonly used as a windbreak and it consisted of small concrete posts and interwoven boards of western cedar. The Welsh court based its decision on whether the fence in question was of beneficial use to the owner and whether it had been erected and maintained solely for the purpose of annoying the owner’s neighbor. 133 S.E.2d at 173. This appears to be true of most, if not all, spite-fence cases — spite fences are not unlawful as a nuisance because they are unattractive; they are unlawful, no matter how attractive, if they interfere with the enjoyment of property.

¶ 26. Courts are ill-equipped to judge the aesthetic impact of boundary fences *597or other structures erected on private property. An Indiana Court of Appeals reached a similar conclusion in Wemke. In that case, a landowner erected a ten foot pole on his property, topped with a piece of blue plywood, to which he attached a toilet seat with a painted brown spot and a toilet lid. The landowner contended that this structure, which faced his neighbor’s yard, was a bird house. His neighbor claimed it was a nuisance, but the court disagreed. “It may be the ugliest bird house in Indiana,” the court stated, “or it may merely be a toilet seat on a post,” but the court found the distinction irrelevant because the neighbor’s “tasteless decoration is merely an aesthetic annoyance, and we are not engaged in the incommodious task of judging aesthetics.” Wernke, 600 N.E.2d at 122. The court recognized that “[a]esthetie values are inherently subjective,” and reasoned that “if landowners in a given neighborhood or development wish to contract among themselves for the appearance of their homes, the courts stand ready, within well-settled limits, to provide enforcement.” Id. But “[i]t would require a great leap of logic,” the court continued,

to say that courts themselves should be the arbiters of proper aesthetics and good taste, and it is a leap we are unwilling to make. ... In our populous society, the courts cannot be available to enjoin an activity solely because it causes some aesthetic discomfort or annoyance. Given our myriad and disparate tastes, life styles, mores, and attitudes, the availability of a judicial remedy for such complaints would cause inexorable confusion.

Id. (quotation omitted). The same holds true in this case. The fact that Alberino erected an unpainted board fence that the trial court found to be “ugly” does not suffice to show that the fence itself is a nuisance. Nor does it satisfy the definition of an unnecessary fence found in our statute. There was no finding that it obstructed Balch’s view or deprived him of light or air.

¶ 27. Unless we want the courts to become the arbiter of proper aesthetics and good taste, the limited purpose behind the unnecessary fence law must be observed and followed. And, notwithstanding the animosity demonstrated by the combatants below, it is not for the court to determine the validity of a landowner’s desire for privacy. The trial court’s decision here is unsupported by its findings and it is unsupported by the law. Its decision should therefore be reversed.

Motion for reargument denied December 30, 2008.

As referenced above, the statute originally included a requirement that the fence or structure be more than six feet in height. It also empowered the town selectmen to remove such fences or structures at the owner’s expense if the owner failed to do so after twenty-four hours notice. See 1894 V.S. § 4697.

Based on this reasoning, the old refrigerator that Balch placed on his property to mark a boundary line would serve an objective purpose and could not be complained of as unsightly.