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Property owned by Peters and O’Leary are separated by a 125 long boundary and the Peters’  land is subject to an easement in favor of O’Leary’s property. The Peters decided to replace the home on their property which caused tension between the two neighbors. O’Leary subsequently became aware that vegetation planted on his property could not be removed once in place without violating shoreland zoning standards. At some point during the building of the home, the Peters and O’Leary also came to a written agreement that allowed O’Leary to plant arborvitae on the Peters’ land within the area of the driveway easement so long as the trees were trimmed to ten feet or less to preserve their ocean views. 

As the Peters’ new home neared completion, O’Leary arranged for sixty-one arborvitae and thirteen pear trees to be planted on his property. The trees were designed to provide a continuous barrier between the parties. O’Leary gave no notice to the Peters of his plans. Based on these events, the Peters filed a complaint against O’Leary, alleging that the plantings constituted a private nuisance pursuant to the spite fence statute and common law. O’Leary alleged counterclaims for trespass and for enforcement of the Peters’ deed restriction.  The lower court concluded that the plantings constituted a private nuisance and found that the dominant reason for the plantings was spite as O’Leary knew that they could not be removed pursuant to shoreland zoning restrictions, and to punish the Peters for disagreeing with him by significantly reducing their view of the Atlantic. O’Leary was ordered to remove the first three pear trees on one end and the last six pear trees on the other and to maintain all of the arborvitae at a height of no more than eight feet. The court permanently enjoined O’Leary and his successors, heirs, assigns, or agents from installing or maintaining any similar structure over eight feet in height that would impair views of the Atlantic Ocean from the Peters’ property. The court awarded damages of one dollar on O’Leary’s counterclaim for trespass, and it otherwise refused to award damages, costs, or fees to either party. O’Leary appealed.

The Maine Supreme Court was called on to decide two issues: (1) whether the plantings created a structure in the nature of a fence, and (2) whether there was adequate evidence to support a finding that O’Leary maintained the structure for the purpose of annoying the Peters. 

Maine’s spite fence statute provides, “Any 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.” Based on the plain language of the statute, the Court concluded that the dense planting of tall trees adjacent to neighboring property in order to form a continuous barrier between the two properties constituted a “structure in the nature of a fence.” 

The Court noted that a plaintiff does not need to prove that malice is the sole motive for building a fence in order to satisfy the spite fence statute. The plaintiff only needs to prove that it was the dominant motive. The Court concludes that there were sufficient facts supporting the trial court’s conclusion that O’Leary’s dominant motive was to annoy his neighbors. Thus, the spite fence statute was fulfilled. 

Peters v. O’Leary, 2011 ME 106 (11/1/2011) 

The opinion can be accessed at: http://www.maine.gov/tools/whatsnew/attach.php?id=318057&an=1