Tag Archives: neighbors

Washington court refuses to find a bailment in stray cat case but accepts claims based on conversion, trespass to chattels, and fraud

Damiano v. Lind, 2011 Wash. App. LEXIS 2000 (Aug. 25, 2011), involved “a dispute between next door neighbors over the disappearance of a cat named Boo.” The cat’s owner, Ms. Damiano, heard Boo meowing from the vicinity of Mr. Lind’s garage on the morning of the its disappearance but when she confronted Mr. Lind, he denied seeing the cat. He later admitted to a police officer, however, that he had trapped a cat meeting Boo’s description in a live trap under his porch and later released it. He explained that he used the trap to catch skunks and that he didn’t know that the cat belonged to Ms. Damiano when he released it. Boo was never found.

The Damianos filed a lawsuit against the Linds, alleging claims of bailment, negligence, malicious injury to a pet, trespass to chattels, conversion, outrage, gross negligence, and fraud. The trial judge dismissed all of the charges on summary judgment. On appeal, the court affirmed dismissal on most of the counts but held that it was error to dismiss the claims for conversion, trespass to chattels, and fraud.

Regarding the bailment claim, the court held that in Washington (unlike Vermont), a person who finds a stray pet is under no obligation or involuntary bailment requiring him to return the pet instead of releasing it. Nor is there any general duty of care to return a stray pet such that the Linds could have been held negligent for failing to reunite Boo with his owners. The court also rejected the Damianos’ claim of malicious injury to a pet because there was no proof of either mailce or injury, as well as their claim of outrage, because the evidence was insufficient to prove either extreme and outrageous conduct or an intention to inflict emotional distress.

Because the neighbor admitted that he had trapped the cat and released it, however, the court held that the Damianos had raised sufficient questions of fact to merit a trial on their claims of conversion and trespass to chattels. Both of these torts, the court explained, require an act of willfull interference with a chattel, without any justification, that deprives the owner of possession or use. The court emphasized that these claims do not require a showing of bad faith or an intent to deprive, and held that Mr. Lind intentionally interfered with the Damianos’ right of possession by trapping Boo. Mr. Lind’s asserted justifications were found to be insufficient, as he failed to provide evidence that cats in general, or Boo in particular, were “specially injurious” to his property such that they could be considered abatable public nuisances, and he did not have the necessary state permits for trapping skunks or other wild animals.

The court also found that there was sufficient evidence to support the Damianos’ cause of action for fraud, as Mr. Lind falsely denied seeing a cat when Ms. Damiano confronted him about hearing Boo in his garage. The court held that Ms. Damiano had a right to rely on Mr. Lind’s statement that he not seen Boo and that she did, in fact, rely on this statement during the following weeks as she continued to search for her lost cat.

The surprisingly interesting jurisprudence of weed ordinances

Lawns are one of the most ubiquitous landscapes in the United States and one of the most potent symbols of American suburbia. They serve as an ideal backdrop to the single family home,  providing just enough space to instill a feeling of privacy, and just enough greenery to foster a connection with nature. Lawns have unified the landscape and transcended social, political, racial, and religious divides like few things can. Michael Pollan, in this regard, compared their influence to the the interstate highway system, fast food, and even television. This deep cultural identification with lawns, he says, also explains “why lawn care is regarded as such an important civic responsibility.”

There’s another reason why lawns and lawn care have become imbued with such strong moral and civic qualities: the antithesis of a well-maintained lawn—the unkempt, uncontrolled, and overgrown yard—is as potent a symbol of failure and decay as the lawn is a symbol of hope and idealism. Few things can conjure feelings of abandonment, neglect, disinvestment, and dispair like a house being slowly consumed by the underbrush.

With symbolism this entrenched and powerful, it’s no wonder that conflicts over lawn maintenance incite people to file complaints, cut their neighbors’ lawns themselves, and even resort to violence.

Weed ordinances were developed long ago as a solution to these sorts of lawn problems, just as spite fence laws evolved to mediate boundary conflicts between vengeful neighbors. Although the earliest weed laws were agricultural measures, they were quickly adapted for use in cities and towns, where they were used to mandate minimum lawn care standards and prevent the growth of nuisance vegetation. The basic mechanism used in these ordinances—a maximum height limit for nonornamental vegetation, usually set somewhere around eight or twelve inches—has hardly changed over the last century.

In addition to protecting neatly maintained neighborhoods from the scourge of overgrown yards, weed ordinances have become the subject of a surprisingly interesting body of lawn care jurisdprudence. Given their widespread use and long historical pedigree, it’s not surprising that most courts uphold weed ordinances with little hesitation. But weed laws aren’t immune from constitutional attacks, and property owners sometimes win. So for the benefit of lawn enthusiasts and weed lovers alike, I now present to you an overview of the Law of Weeds.

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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.

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.