Dowdell v. Bloomquist

WC 2001-0617, 2002 R.I. Super. LEXIS 85 (Super. Ct. June 28, 2002)

 

RULE:

In a landowner relations context, R.I. Gen. Laws § 34-10-1(1)(2) define fence to include a hedge. A fence is a hedge, structure, or partition erected for the purpose of enclosing a piece of land or to separate two contiguous estates. A hedge is also defined as a row of closely planted shrubs or low growing trees forming a boundary or fence. 

FACTS:

A homeowner filed a complaint for relief against his neighbor's planting of four large trees on his side of their property line, claiming that the trees were a spite fence, and that the deed restrictions prohibited fences or hedges over six feet in height. The owner objected to a variance that the neighbor sought to construct an addition on his house. The day after the variance request was decided, the neighbor planted the first large tree on his side of the property line in the center of the owner's view of the Atlantic Ocean. Shortly thereafter, he planted three more trees. 

ISSUE:

Should the neighbor be enjoined from planting trees as a spite fence?

ANSWER:

Yes

CONCLUSION:

The court held that the owner presented nothing to prove that the property restrictions were being enforced. Merely placing the restrictions into evidence, without more, was insufficient for the owner to meet her burden of proof. The trees could be considered a fence. They were planted shortly after the parties began arguing over the variance. Therefore, they constituted a spite fence, pursuant to § 34-10-20. The neighbor was to cut the trees to no more than six feet in height and keep them at that height, or remove them entirely.

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