Sher v. Leiderman
| Decision Date | 29 May 1986 |
| Citation | 226 Cal.Rptr. 698,181 Cal.App.3d 867 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 54 USLW 2652 Rudolph and Bonnie SHER, Plaintiffs and Appellants, v. P. Herbert and Gloria LEIDERMAN, Defendants and Respondents. H000859. |
Mark J. Solomon, Law Offices of Mark J. Solomon, Redwood City, for defendants and respondents.
Rudolph and Bonnie Sher appeal from a judgment against them in favor of P. Herbert and Gloria Leiderman following a court trial. Their appeal presents an issue of first impression in this state, namely, whether an owner of a residence designed to make use of solar energy can state a cause of action for private nuisance when trees on his neighbor's property interfere with his solar access. We determine that California nuisance law does not provide a remedy for blockage of sunlight, and, for reasons discussed below, we decline to expand existing law.
The Shers' appeal also includes claims that the California Solar Shade Control Act applies to give them a private cause of action against the Leidermans, and that negligent infliction of emotional distress also lies. In addition they assert that the court improperly sustained a demurrer to their cause of action based on mutual equitable servitudes. We find that the demurrer was properly sustained and that the Shers' other contentions are without merit. Accordingly we affirm the judgment in its entirety.
The extensive findings set forth in the trial court's statement of decision are not in dispute and form the basis for our factual summary.
In 1962 the Shers entered into a long term land lease with Stanford University. The lot they leased was located in a new residential development on the Stanford campus known as Pine Hill 2, one of five model planned subdivisions developed by Stanford for use by faculty and staff. All building and landscaping on subdivision lots was subject to Stanford's prior review and approval. Shortly after the Shers' plans were approved, the Leidermans leased an adjacent lot. They in turn obtained design approval for their home and The Shers' lot fronts on Mayfield Avenue and is situated on the northeast slope of a hill. The Leidermans' lot is southwest of Shers' and occupies the upper slope and the crest of the hill, fronting on Lathrop Drive. The two lots share a common boundary along the Shers' southern--and the Leidermans' northern--property line.
proceeded with construction. Both families moved into their new homes in 1963 and have lived there ever since.
The Shers' home was designed and built to take advantage of the winter sun for heat and light. The home is oriented on the lot so as to present its length towards the south. South-facing windows are relatively larger than others in the house. The south side of the house is also "serrated" to expose the maximum area to the sun. A large south-facing concrete patio operates to radiate sunlight into the home's interior. Skylights add to the light inside the house and an open floor plan in the common areas increases the general circulation of light and air. Roof overhangs are designed at an angle and length to block the hot summer sun while permitting winter sunlight to enter the house. Roof and walls are well insulated. Deciduous trees and shrubs along the southern side of the house aid in shading and cooling in the summer but allow winter sunlight to reach the house.
The trial court found that the Sher home is a "passive solar" home. The design features and structures identified above form a system intended to transform solar into thermal energy. The court also found that a concomitant design goal was to create a bright and cheerful living environment. Though the home includes many passive solar features, it does not make use of any "active" solar collectors or panels. Nor does it employ any "thermal mass" for heat storage and distribution. Building materials used throughout were typical and conventional for the time; the house does not contain any special materials primarily selected for effective thermal retention.
At the time the Shers and Leidermans designed and built their homes there were no trees on either lot. For that matter, this was true of all of Pine Hill 2. Over the years both parties, as well as their neighbors, landscaped their properties. As noted above, the Shers' landscaping was designed to enhance and complement their home's effectiveness as a solar system. The Leidermans' landscape plan was disapproved in part by the Stanford housing office, specifically in regard to a number of trees they proposed to plant within a 10 foot sewer easement along their northern property line bordering the Shers' lot. Despite the lack of approval, however, the Leidermans proceeded to implement their plan. Between 1963 and approximately 1976 they planted a large number of trees, including Monterey pine, eucalyptus, redwood, cedar and acacia. The trial court found that these trees were planted to beautify the appearance of the Leiderman property, to attract birds and other small creatures, and to provide shade and privacy. The court found no intent on the Leidermans' part to deprive the Shers of sunlight.
In 1972, the Shers discovered that certain trees on the Leiderman property cast shadows on the Sher house in the wintertime. The offending trees were topped the following spring and the cost was borne by the Shers. In 1977 several other Leiderman trees were removed because their continued growth in the sewer easement posed a threat to the sewer line. The cost of this removal was shared by the Shers and Stanford. Further tree work was done at the Shers' expense in the winter of 1979. The Leidermans themselves also engaged in certain tree trimming and removal over the years at a cost to them of approximately $4,000. Since 1979, however, the Leidermans have refused either to undertake any further trimming on their own or to cooperate with the Shers in this regard.
At time of trial trees on the Leiderman property completely blocked the sun to much of the Sher home in the winter months. From December 21 to February 10, the central portion of the Sher home The shade problem has transformed the formerly cheerful and sunny ambience of the Sher home; the interior is now dark and dismal in the winter months. The shading has also had an adverse impact on the home's thermal performance. The Shers' expert testified that heat loss during the winter months amounted to an equivalent of approximately 60 therms of natural gas. This converts into $30 to $60 per season in heating costs. Two experts testified that the loss of sunlight to the Shers' house has resulted in a diminution of market value between $15,000 and $45,000. It appears, however, that this loss of value is attributable more to the gloomy atmosphere of the house than to its decreased effectiveness as a solar system. The court also found that the Shers have suffered actual and serious emotional distress as a result of the blockage of sunlight to their home.
was cast in shadow between 10:00 a.m. and 2:00 p.m. The Shers added a skylight over their kitchen area to help alleviate the problem, but now this too is largely shaded during the winter.
In order to restore sunlight to the Shers' home during the winter months it would be necessary to trim certain trees on the Leiderman property, top others and remove those where topping would destroy the character of the tree or possibly kill it. Annual trimming would also be necessary.
The Shers proceeded to trial on three causes of action: 1) private nuisance; 2) public nuisance under the California Solar Shade Control Act (Pub. Resources Code § 25980, et seq.); and 3) negligent infliction of emotional distress. After a six day trial, which included a visit to the property, judgment was entered against them on all three causes of action. We will discuss these in turn, after which we will take up the Shers' claim that their first amended complaint stated a cause of action for breach of equitable obligations.
The trial court found that the relief requested by the Shers would amount to burdening the Leiderman property with a permanent easement for passage of light to the Sher property. It is well settled in California that a landowner has no easement for light and air over adjoining land, in the absence of an express grant or covenant. (Katcher v. Home S. & L. Assn. (1966) 245 Cal.App.2d 425, 429, 53 Cal.Rptr. 923; Pacifica Homeowners' Assn. v. Wesley Palms Retirement Community (1986) 178 Cal.App.3d 1147, 1152, 224 Cal.Rptr. 380.) Nuisance law is in accord: blockage of light to a neighbor's property, except in cases where malice is the overriding motive, does not constitute actionable nuisance, regardless of the impact on the injured party's property or person. (Haehlen v. Wilson (1936) 11 Cal.App.2d 437, 441, 54 P.2d 62.)
Only one court in the country, the Wisconsin Supreme Court, has departed from established law in this field. (Prah v. Maretti (1982) 108 Wis.2d 223, 321 N.W.2d 182.) 1 In the Prah case plaintiff's house was equipped with roof-top solar collectors which supplied energy for heat and hot water. Defendant purchased a lot adjacent to plaintiff's to the south and planned construction of his residence in a location where it would substantially shade plaintiff's collectors. Plaintiff sought injunctive relief and the matter reached the Wisconsin Supreme Court following summary judgment for defendant.
The court opened its discussion by observing that the interests protected by nuisance law are broadly defined to include practically any disturbance of the enjoyment of property. " ...
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