Dowdell v. Bloomquist

847 A.2d 827, 2004 R.I. LEXIS 48, 2004 WL 484886
CourtSupreme Court of Rhode Island
DecidedMarch 15, 2004
Docket2002-630-Appeal
StatusPublished
Cited by18 cases

This text of 847 A.2d 827 (Dowdell v. Bloomquist) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dowdell v. Bloomquist, 847 A.2d 827, 2004 R.I. LEXIS 48, 2004 WL 484886 (R.I. 2004).

Opinions

OPINION

FLAHERTY, Justice.

“Tree at my window, window tree, My sash is lowered when night comes on; But let there never be curtain drawn Between you and me.”

—Robert Frost

In the matter before us, four western arborvitae trees are at the plaintiffs window. Sadly, however, the curtains between the neighboring parties have long since been drawn, forever dividing what was once an amicable relationship between them. The fate of the offending trees now hangs in the balance.

The plaintiff, Cheryl Dowdell, brought this action in Superior Court alleging that the defendant, Peter Bloomquist, planted four western arborvitae trees on his Charlestown property solely to exact revenge against her, to retaliate by blocking her view, and in violation of the spite fence statute, G.L.1956 § 34-10-20.1 She sought legal and equitable relief. After considering the testimony and evidence presented at a nonjury trial,2 the presiding Superior Court justice found that the trees were planted to satisfy defendant’s malicious intent, not his pretextual desire for privacy, and that defendant had violated § 34-10-20. The trial justice granted plaintiff in-junctive relief. We affirm the judgment of the trial justice.3

The facts pertinent to this appeal are as follows. The parties’ homes are on adjoining lots in a subdivision of Charlestown, each approximately one acre in size. Dow-[829]*829dell’s home sits at a higher elevation than Bloomquist’s and has a distant view of the ocean over the Bloomquist property. In June 2000, defendant acquired the home from his mother, Lorraine Bloomquist. Prior to that time, the Dowdell family had an amicable relationship with defendant’s mother. Change was in the wind in the fall of 2000, however, when defendant petitioned for a zoning variance from the Charlestown zoning board seeking permission to build a second-story addition to his home. The plaintiff expressed concern about the petition, anxious that the addition would compromise her view of the Atlantic Ocean. For six months the parties argued before the Charlestown Zoning Board of Review as to the merits of the addition. As a result, the relationship between the neighbors became less than friendly. In March 2001, defendant began clearing land and digging holes to plant the disputed trees in a row between their homes. In April, defendant’s counsel sent a letter to plaintiff warning him against trespass onto the Bloomquist property. In May, one day after the zoning board closed its hearing on defendant’s variance request,4 defendant began planting the four western arborvitae trees that now stand in a row bordering the property line.5 Although the forty-foot-high trees enabled little light to pass into Dowdell’s second- and third-story picture windows, testimony at trial evidenced that the vegetation was not a bar to the unkind words between the neighbors.

After the trial justice heard four days of testimony and viewed the property, he made a finding that the row of trees were a fence, based on the language of § 34-10-l.6 He further found that the objective of privacy claimed by defendant was “no more than a subterfuge for his clear intent to spite his neighbors by erecting a fence of totally out of proportion trees.” Hence, the trial justice found that the trees constituted a spite fence in violation of § 34-10-20. He noted testimony that plaintiffs real estate values had depreciated by as much as $100,000. Nonetheless, he found that money damages could not adequately compensate her and that equitable relief was more appropriate. Bloomquist was ordered “to cut the four Western Arborvitae to no more than 6' in height and keep them at that level or remove them entirely with no more Western Arborvitae to be planted.”7

[830]*830The defendant timely appealed to this Court. In his appeal, defendant asserts that the offending trees do not constitute a fence. Moreover, defendant contends that even if the trees were considered a fence, the trial justice erroneously granted relief in the face of testimony that the trees serve a useful purpose of privacy for defendant. To support that contention, defendant relies on Musumeci v. Leonardo, 77 R.I. 255, 259-60, 75 A.2d 175, 177-78 (1950), for the proposition that when a fence is erected for a useful purpose, despite spiteful motive, no relief may be granted. Moreover, defendant alleges that the trial justice lacked the authority to award injunctive relief based on the holding of Musumeci as well as the specific language of the spite fence statute, which states that one “may have an action to recover damages for the injury.” Section 34-10-20. Additionally, defendant urges that the trial justice erred by granting relief that amounted to'an easement for light or view where no such remedy exists at common law.

Not surprisingly, plaintiff defends the lower court ruling. She asserts that the trial justice had ample authority to award injunctive relief and correctly exercised this authority based on his well-supported finding that the four trees constituted nothing more than a fence erected out of spite.

The trial justice found a violation of the spite fence statute based on his careful and deliberate findings of fact and on his credibility assessment of the testimony at trial. We are mindful that factual findings “are entitled to great weight and will not be disturbed by this Court absent proof that they are clearly wrong or that the trial justice overlooked or misconceived material evidence.” Tavares v. Beck, 814 A.2d 346, 350 (R.I.2003) (per curiam); Perry v. Garey, 799 A.2d 1018, 1022 (R.I.2002). We grant the same level of deference to a trial justice’s determination of credibility. See Bogosian v. Bederman, 823 A.2d 1117, 1120 (R.I.2003). Based on this standard, we decline to disturb the trial justice’s findings that the four arborvitae trees planted in a row constitute a fence and that defendant planted them with spiteful intentions. Based on the record before us, we cannot say that the trial justice was clearly wrong or that he overlooked or misconceived material evidence with respect to his findings of fact or credibility.

This is the first occasion this Court has had to address the issue of whether a row of trees may be considered a fence within the meaning of the spite fence statute, § 34-10-20. We believe the trial justice properly referred to the definition of “lawful fences” found in § 34-10-1 to understand the simple meaning and legislative intent behind its use of the word “fence.” Based upon the language of § 34-10-1, a fence clearly includes a hedge. And based upon the expert testimony relied on by the trial justice, a row of western arborvitae trees may constitute a hedge. However, even if the trees were not a hedge per se, the spite fence statute refers to “[a] fence or other structure in the nature of a fence.” The trial justice considered the proximity of the four trees that touched one another, and the broad span of sixty feet across which they spread, and rationally interpreted that the trees were a fence.

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Dowdell v. Bloomquist
847 A.2d 827 (Supreme Court of Rhode Island, 2004)

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Bluebook (online)
847 A.2d 827, 2004 R.I. LEXIS 48, 2004 WL 484886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowdell-v-bloomquist-ri-2004.