Fence fights (and pirate fences)

A recent Slate article discussed a property dispute between Donald Trump and a Scottish couple who refuse to sell him their land for a golf course. Trump’s latest move in the fight was to build a fence around their house and then invoke an arcane law requiring them to pay for half of the costs. As the article explained, fence laws like this developed over the years as a response to problems with roaming livestock. In some places, laws were enacted requiring property owners to fence in their animals, but in places where free grazing was encouraged, the responsibility for fencing was often imposed on the people who wanted to fence out their neighbors’ animals. Since neither of these options is ideal, a third choice—cost sharing—was developed to prevent free riders and more evenly distribute costs. Unfortunately, as illustrated by the Trump dispute, cost sharing fence laws can also encourage harassment.

In fact, there are all sorts of fence laws intended to prevent and resolve these sorts of fence fights. Some of the most interesting are “spite fence” laws, which prohibit property owners from putting up fences mainly intended to annoy their neighbors.

Mill Pond Condominium Association v. Manalio provides a good example. The Manalios owned the Harbor Flag Shop in Wells, Maine, and after a dispute with the condo association about an easement, they developed an “excessive enthusiasm” for the “history of piracy and artifacts associated with piracy.” They also developed a “sincere interest in annoying the neighboring condominium owner,” and these interests converged in a variety of interesting fence decorations. As the court recounted:

Among the many signs, flags, posters, banners and displays affixed to the fence were a banner entitled Death Zone, No Prisoners with two skulls and crossbones, a sign for “Graveyard” pointing to the condominiums, Calico Jack displays with a skull and crossed swords, a sign “No trespassing, Violators will be shot, Survivors will be shot again.”, and two posters of primates with titles “Those Neighbors!” and “Lala la la la la la”.

The Maine spite fence law states that:

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.

Since the Manalios’ fence was less than 6 feet tall, the court allowed them to keep all their signs up, as well as their flags, so long as they “do not become so closely spaced as to become ‘in the nature of a fence.'” The skulls and other things placed on top of the fence, however, rose above the 6 foot mark and had to be removed. Although Mr. Manalio argued that these were just decorations for the store and claimed that “he was from New Jersey he could find cheaper and better ways of harassing his neighbors,” the court had no trouble finding that their purpose was to annoy the neighbors.

While the pirate theme is an interesting twist, it’s not all that extreme compared with other spite fence cases. Consider Gertz v. Estes, an Indiana case where a boundary line dispute devolved to the point that the Gertzes put up an 8 foot tall fence will nails protruding from the edges and security cameras pointed toward the Esteses’ property. The Gertzes were ordered to remove the fence under the Indiana spite fence law, even after they cut the top to keep it under 6 feet tall.

In a Virginia case, Berg v. Cline,  Mr. Berg installed surveillance cameras and motion-activated super bright flood lights after the Clines moved in next door, allegedly to stalk and intimidate them. In response, the Clines put up a 32 foot high fence, and then Berg sued them to take it down, threatening that he would just put up higher perimeter lights if they didn’t. The court, noting Mr. Berg’s bad behavior, refused to order the fence removed, despite its excessive proportions.

It’s an interesting question whether Trump’s fence could be considered a spite fence. Many spite fence laws only prohibit fences over a certain height, as in the pirate fence case, and these statutes would seem to allow an owner to use a cost sharing fence law to harass the neighbors. But sometimes the courts will find a spite fence even if it’s shorter than the legal limit, as with the nail-tipped fence in Gertz v. Estes.

Premises liability for injuries caused by wild animals

People get injured by wild animals all the time and in many different ways. When the injury occurs on someone else’s land, one issue that can come up is whether the victim can sue the property owner for damages.

Under the common law rule of animals ferae naturae, property owners are generally held immune from liability for these sorts of injuries. The rule only precludes strict liability, however, and property owners can still be found liable for negligence. Continue reading

Who owns wild animals?

If you’ve gone to law school, you’ve undoubtedly read the famous decision in Pierson v. Post, and you know that the question of who owns wild animals comes down to who catches them. If you haven’t gone to law school, or if your memory needs refreshing, the gist of what happened in the case is that a certain Mr. Lodowick Post was running his hounds in hot pursuit of a fox, when all of a sudden Jesse Pierson swooped in, killed the fox, and told Post to go shove it. This being 1805 and all, the New York Supreme Court of Judicature discussed a bunch of books written by old white men with names like Puffendorf, Bynkershoek and Barbeyrac, and after comparing their theories of property rights, the court decided that whoever captures the fox gets to keep it. So Mr. Pierson got to keep the fox, despite his poor sportsmanship, and Mr. Post was again told to go shove it.

The beauty of this rule is that it’s easy to apply: whoever captures or kills the fox gets to keep it.* The problem with the rule of capture was that it incited frontier hunters and trappers to kill as many wild things as they could. Free taking policies, moreover, which were established as an alternative to British land monopolies, gave American hunters the right to roam freely even on private lands. Coupled with poor enforcement of the limited game laws that existed, the whole system just encouraged poaching, and exploitation went on as if wild animals were an inexhaustible resource. But before too long, wealthy sportsmen started to notice problems: all manner of wild things were starting to disappear, and some—like the heath-hen and passenger pigeons—were wiped out altogether.

To stop the extinction of species and preserve game hunting for the wealthy elite, sportsmen’s associations were formed and lobbied for regulations that would exclude poor and subsistence hunters. Seasons were further restricted, efficient hunting techniques were banned, and license fees were established that were too high for the poor to afford. At the same time, fish and game agencies (funded by the license fees that only the wealth could pay) were created to enforce regulations that local officials would not. And while the British elite had secured wildlife resources for themselves by giving property owners control over the wildlife found on their land (rather than letting pesky Piersons sneak in and take it), American sportsmen didn’t contest the rule of capture. Instead, they justified restrictive hunting regulations on the basis of a state “ownership” interest in wildlife, saying that wildlife was a common resource that had to be preserved against the poor and hungry masses.

The U.S. Supreme Court ruled on the issue in Geer v. Connecticut, a case that upheld a state law making it illegal to export game birds. Quoting a Minnesota court decision, the Court explained that “the ownership of wild animals, so far as they are capable of ownership, is in the State, not as a proprietor but in its sovereign capacity as the representative and for the benefit of all its people in common.” This is really a variation of the public trust doctrine, which says that common resources like navigable waters cannot be “owned” by individuals, but are instead held in trust by the state for the benefit of all its residents. So even though the state ownership rule was created as a way for wealthy sportsmen to take control of wildlife resources, their motivations were rooted in the conservation movement.

Nearly a century later, in 1979, the Supreme Court overturned Geer in a case called Hughes v. Oklahoma. The case was about another ban on wildlife exports, and this time, the Court ruled that it was unconstitutional under the Commerce Clause, which prohibits interstate discrimination in commerce. In reaching this result, the Court explained that the “state ownership” language was nothing more than an antiquated legal fiction. But the Court was careful to emphasize that the states still had the power to protect, conserve and manage wild animals, so long as their regulations didn’t violate the Commerce Clause or other constitutional provisions.

Even though the Supreme Court made it pretty clear that states don’t own wild animals, a lot of states pretty much ignored this and continued to rely on the “fiction” of common ownership. Consider the Oregon wildlife statute, which says that “Wildlife is the property of the state.” A group of game ranchers in Oregon recently wanted to know exactly what that meant—whether, in particular, it meant that they didn’t actually “own” the elk, ibex, water buffalo and other animals raised on their property and either born in captivity or purchased from license holders. The Oregon Court of Appeals decided the case in April, and the judges held that, yes, the state “owns” wild animals, but only in a sovereign sense, and not in a proprietary sense. In other words, the state owns wildlife insofar as it can regulate hunting and conservation, but doesn’t own it in the way that you or I can own a fox after we’ve captured it. It’s the same legal fiction, still on the books.

So who owns wild animals? The best answer is probably either nobody or everybody, at least until the wild animal is captured, and then the first person to get the fox still wins as long as he complies with all the hunting regulations. Maybe the Texas parks and wildlife law says it better by emphasizing that wild animals aren’t owned by the state itself, but “are the property of the people of this state.”

* If you’re a law professor, disregard this statement. Obviously the rule of capture is very, very complicated because the meaning of “capture” isn’t really clear and there are just so many ways that you can maybe-capture a fox.

Additional references:

Thomas A. Lund, Early American Wildlife Law, 51 N.Y.U. L. Rev. 703 (1976).

Thomas Lund, Nineteenth Century Wildlife Law: A Case Study of Elite Influence, 33 Ariz. St. L.J. 935 (2001).

Michael C. Blumm and Lucus Ritchie, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 Envtl. L. 673 (2005).

When your neighbor shoots your cat, sue for damages

A California man whose cat, Pumpkin, was shot with a pellet gun can seek damages from the alleged shooter to cover thousands of dollars of medical bills. The appellate court refused to limit liability to the fair market value of the cat (basically zero), saying that to hold otherwise would be “inhuman.” Nevertheless, it remains to be seen whether the veterinary expenses will be deemed reasonable, and it’s quite possible that Pumpkin’s owner won’t be awarded the full amount he’s seeking.

Kimes v. Grosser (Cal. App. 1st Dist. May 31, 2011)

– Bob Egelko, Brentwood man cleared to sue over cat’s shooting, San Francisco Chronicle, Jun. 2, 2011

In related news, a Brooklyn man was charged with reckless endangerment, criminal mischief, weapon possession, and animal torture after he shot his neighbor’s pitbull with a paintball gun. The man, who was Swiss, allegedly told his neighbor that “in Switzerland, we train our dogs not to bark.”

– Jamie Schram and Andy Canpbell, Yelping pooches paintballed, N.Y. Post, Jun. 17, 2011.