Peters v. Richard D. O'leary.

• Decision Date: 01 November 2011
• Docket Number: Docket No. Yor–10–594.
• Citation: 2011 ME 106,30 A.3d 825
• Parties: Edgar E. PETERS et al.v.Richard D. O'LEARY.
• Court: Maine Supreme Court

30 A.3d 825

2011 ME 106

Edgar E. PETERS et al.

v.Richard D. O'LEARY.

Docket No. Yor–10–594.

Supreme Judicial Court of Maine.

Argued: Sept. 14, 2011.Decided: Nov. 1, 2011.

John C. Bannon, Esq. (orally), and John B. Shumadine, Esq., Murray, Plumb & Murray, Portland, for appellant Richard D. O'Leary.James B. Bartlett, Esq. (orally), and Theresa Page, Esq., James B. Bartlett, P.A., York, for appellees Edgar E. Peters and Sheryl A. Peters.Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.Majority: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.Concurrence: ALEXANDER, J.SAUFLEY, C.J.

[¶ 1] Edgar E. and Sheryl A. Peters own a parcel of land in Ogunquit that abuts and is uphill from oceanfront property owned by Richard D. O'Leary. This litigation arose because, after a series of disputes with the Peterses, O'Leary planted a row of at least seventy-four trees near the parties' 125–foot–long boundary, which obstructed ocean views from the Peterses' newly constructed home. The Superior Court (York County, Fritzsche, J.) found that O'Leary had created a nuisance pursuant to Maine's spite fence statute, 17 M.R.S. § 2801 (2010),¹ and the common law, and granted injunctive relief to the Peterses. O'Leary argues that the court erred in reaching its findings and applying the law. The Peterses argue that the court should have awarded them attorney fees. Having considered all of the parties' arguments, we affirm the court's judgment and write to address only the central issue: whether the court erred in determining that O'Leary had created a spite fence nuisance.

I. BACKGROUND

[¶ 2] The Peterses purchased their property in 2002. The property is separated from the ocean by property that has been owned by O'Leary, or a trust in his name, since 1988. The Peters property is uphill from the O'Leary property and is subject to an easement in favor of the O'Leary property for the purpose of providing a driveway to enter the O'Leary property. It is also subject to a deed restriction that prohibits the erection of structures within ten feet of the 125–foot–long boundary with the O'Leary property.

[¶ 3] The abutters appear to have had a cordial relationship until the Peterses decided to replace the house on their property. At first, O'Leary and his wife complained to the Peterses only about the removal of vegetation along the boundary between their properties. As the construction of the Peterses' home progressed, however, the relationship between the neighbors became increasingly contentious. O'Leary and the Peterses had disagreements about the meaning of the Peterses' deed restriction and about the vegetation to be planted in the driveway easement. As tensions were growing between the neighbors, O'Leary learned from the Town of Ogunquit's Code Enforcement Officer that vegetation planted on his property could not be removed once in place without violating shoreland zoning standards.

[¶ 4] In June 2006, as the Peterses' new home was reaching completion, O'Leary arranged to have a total of sixty-one arborvitae and thirteen pear trees planted on his property. These trees were designed to provide a continuous barrier between the properties, though they did not strictly follow the boundary line. The pear trees could reach heights of up to forty feet. O'Leary did not give the Peterses advance notice of the extensive installation he had planned.

[¶ 5] Based on these events, the Peterses filed a complaint against O'Leary in the Superior Court. The complaint, as subsequently amended, alleged that O'Leary's plantings constituted a private nuisance pursuant to the spite fence statute, 17 M.R.S. § 2801, and pursuant to the common law. The Peterses sought declaratory and injunctive relief. O'Leary answered the complaint and alleged counterclaims for trespass and for enforcement of the Peterses' deed restriction.

[¶ 6] After alternative dispute resolution was unsuccessful, the court held a three-day nonjury trial in July 2010. The court also took a view of the property at issue. O'Leary testified at the trial and admitted that he did not tell the Peterses about the extent of his planned plantings, even when they reached a written agreement with him just weeks before the plantings that allowed O'Leary to plant arborvitae on their land within the area of the driveway easement as long as the trees were trimmed to ten feet or lower to preserve their ocean views.

[¶ 7] The court entered a judgment in favor of the Peterses finding that the plantings constituted a private nuisance pursuant to the spite fence statute, 17 M.R.S. § 2801, and at common law. The court found that, although the wall of vegetation increased O'Leary's privacy, “the dominant reason for such a massive series of plantings, that [O'Leary's landscaper] refers to as ‘installations,’ was to punish the [Peterses] by significantly reducing their prized view of the Atlantic.”

[¶ 8] The court ordered O'Leary to remove the first three pear trees at one end of the row and the last six pear trees at the other end of the row within sixty days, and to maintain all of the arborvitae at a height of not more than eight feet. The court permanently enjoined O'Leary and his successors, heirs, assigns, or agents from “installing or maintaining any similar structure or planting exceeding 8 feet in height ... that would impair ... views of the Atlantic Ocean” from the Peterses' 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. The court also declined to require removal of the Peterses' retaining wall within the deed-restricted area.

[¶ 9] O'Leary moved to amend the judgment, and the Peterses moved for additional findings of fact. The court made additional findings, including that O'Leary planted the trees out of spite, knowing that they could not be removed pursuant to shoreland zoning restrictions, to punish the Peterses for disagreeing with him. Notwithstanding the limited remedy imposed, O'Leary appealed to us from the court's judgment.

II. DISCUSSION

[¶ 10] O'Leary argues that the court erred in finding that the plantings constituted a fence within the meaning of the spite fence statute and in determining that he had planted the trees with a dominant motive of malice.

[¶ 11] 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.” 17 M.R.S. § 2801 (emphasis added).

[¶ 12] To decide this appeal, we address two questions: (1) whether the plantings created a “structure in the nature of a fence,” and (2) whether the evidence was adequate to support a finding that O'Leary maintained the structure “for the purpose of annoying” the Peterses.

A. “Structure in the Nature of a Fence”

[¶ 13] We review legal questions of statutory interpretation de novo. Jusseaume v. Ducatt, 2011 ME 43, ¶ 16, 15 A.3d 714. A statute will be interpreted according to its plain meaning to discern the intent of the Legislature. Id. If a statute is reasonably susceptible to different interpretations, it is ambiguous, see Gaeth v. Deacon, 2009 ME 9, ¶ 15, 964 A.2d 621, and only then may we review additional indicia of legislative intent to determine its meaning, HL 1, LLC v. Riverwalk, LLC, 2011 ME 29, ¶ 17, 15 A.3d 725.

[¶ 14] The plain language of section 2801 anticipates the possibility that a “structure in the nature of a fence” could constitute a spite fence. 17 M.R.S. § 2801. We therefore discern no error in the court's conclusion that the dense planting of tall trees adjacent to the neighboring property to form a continuous barrier between the two properties created “a structure in the nature of a fence.” Id.; see Webster's Third New International Dictionary of...