Some Preliminary Thoughts on the Law of Neighbors

• Publication year: 2011
• Citation: Vol. 39 No. 3

Some Preliminary Thoughts on the Law of Neighbors

James Charles Smith^*

Table of Contents

I. Introduction...............................................................................758

II. The Stranger Model..................................................................761

III. The Friend Model........................................................................762

IV. The Impact of Adverse Possession on Neighbors' Boundaries...................................................................................763

A. Adverse Possession Under the Stranger Model.......................765
B. Adverse Possession Under the Friend Model..........................767

V. The Spite Fence Doctrine and Other Spite Objects.............772

VI. Ownership Rules for Boundary Line Assets........................776

VII. The Neighbor Law of South Africa........................................779

VIII. The Neighbor Law of Scotland...............................................782

IX. Conclusion...................................................................................785

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I. Introduction

A fundamental characteristic of real property law, one that is definitional in nature, is that its subject matter consists of land parcels. A land parcel, in contrast to an ownership interest such as a fee simple estate, is not an abstraction. Each land parcel has a physical reality, and virtually all land parcels abut other parcels.¹ Each parcel has one particular location, defined by its proximity to other pieces of property. The value of a land parcel depends heavily upon its location, and the nature of neighboring parcels has a major impact in determining that value.

Owners of neighboring parcels have sets of rights, privileges, and duties that define their legal relationships with neighbors. In Anglo-American law, those rights, privileges, and duties are components of real property law, but they are not a recognized category of real property law. Rather, they represent the application of general doctrines and rules to neighbors, instead of a distinct and cohesive body of law of its own. Years ago Professor Jacqueline Hand and I wrote a book with the title Neighboring Property Owners.² Another book written by Professors Backman and Thomas has a similar scope in many respects,³ and there are a handful of articles in U.S. law journals dealing with what we might call neighbor law topics.⁴ Such efforts, however, have not had a measurable impact on how the legal community views neighbors. Nevertheless, looking forward we could choose to call the collection of rights, privileges, and duties that applies to neighboring owners and possessors of land parcels the "Law of Neighbors" or "Neighbors Law." The future might well bring a world in which distinctive law school courses on Neighbors Law are taught and a specialized body of doctrine with regard to neighborly relations emerges. Notably, as

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we soon shall see, other legal systems have developed distinct bodies of law to govern relations among neighbors. Two such systems, briefly discussed below, are South Africa and Scotland.

A key question to ask is what value, if any, is to be gained by coalescing legal principles and rules that define the rights and obligations of neighbors under a specialized. There are a number of different ways one can think about the possibilities of "added value," many of which have a utilitarian perspective. would forging a specialized law of neighbors aid academics, judges, lawyers, and other persons called on to analyze disputes among neighbors? Would it lead to law reform measures that make the law more coherent and just? Would it make the law more accessible to the public? would there be efficiency gains with respect to legal research and accessing the relevant law?

Any attempt to tackle these questions invites consideration of broader matters of jurisprudence and epistemology. Lawyers and legal academics organize their knowledge by reference to categories or fields. This does not distinguish our discipline from other disciplines. The human mind organizes knowledge by creating organizational and hierarchical structures. This tendency is hard-wired; it is part of our biology. But the creation of information-organizing categories is not easy, and there are no firm consensuses on what subject matters constitute a "legal category" or how to define a legal category. In my view, a good starting point for discovering a legal category is to look for recognition by the legal community of a distinctive subject matter that is worthy of study and mastery. The Anglo-American legal system has long considered the law of real property to be a major category.⁵ Within the real property realm, there are many long-recognized legal categories, or sub-categories. for a long time, the mainstays have included the law of easements, the law of mortgages, and the law of estates in land (including future interests). Legal categories are not static; they evolve. Just as legal content, principles and doctrines evolve. more recently, subjects such as the law of zoning and water rights law have achieved recognition as important real property subcategories.

Legal categories emerge for one of two reasons: the subject matter has practice cohesion, or it has academic cohesion. "Practice cohesion" means that practicing lawyers who represent clients identify the subject matter as an

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area of specialization and tend to cluster their own work in that area. In so doing, they gain or attempt to gain comparative expertise in the relevant subject, and market their services to clients accordingly. The law of neighbors or "neighborhood law" is not presently a recognized type of law practice in the United States, and it will not likely become one anytime in the near future.⁶ In part this is the case because neighbor law disputes typically do not involve high financial stakes and resulting incentives for lawyers to market themselves as experts in the area.

"Academic cohesion" means legal scholars and law teachers conceive of the subject matter as a discrete area worthy of analysis and study as a whole. Academic consensus is usually reflected by treatises, casebooks, and law school courses bearing the title of the relevant specialty. In addition, academic organizations and conferences can point toward academic cohesion for a particular subject matter. Of course many legal categories have both practice cohesion and academic cohesion, but the overlap is not complete. For example, several foundational law school courses, such as torts, contracts, and constitutional law, do not translate to practice specializations.⁷

This Article will not explore legal categories as a general matter or even attempt a broad examination of the possible values stemming from the recognition of a U.S. law of neighbors. Instead, this Article suggests that if the field of neighbor law develops in the United States, academics will have to lead the way. I also contend that there may well be academic value to such an enterprise, because it could push along evaluation of disparate rules and doctrines, with an eye toward identifying major principles that are presently hidden or underappreciated. Of even greater importance, such an effort could lead to a salutary simplification of the law of neighbors, built on legal reforms that do away with outmoded legal rules and doctrines.

This Article does three things. First, it introduces the "stranger model" and the "friend model" of neighbors law, using these models as a frame for describing three components of existing U.S. law applicable to neighboring

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landowners. Second, it briefly describes the extent to which South Africa and Scotland have come to describe neighbors law as a discrete legal category, which correlates to the stranger model and friend model. Third, it concludes by making several suggestions on how the models may help in the construction of a coherent law of neighbors.

II. The Stranger Model

Usually, the U.S. legal system treats neighbors as strangers, subjecting them to the same set of legal rules and norms that apply universally to all persons in general. This is called the "stranger model" of the law of neighbors. Thus, if a person causes injury to her neighbor's property or person, whether the victim is entitled to relief depends upon the general law of torts, including nuisance, negligence, assault, and battery.

A property owner's right to exclude others is defined by tort law, more specifically by causes of actions and remedies available to the property owner. When the problem between neighbors involves one person's entry onto adjoining property, the matter is resolved by resort to the general law of trespass. Unless the intruder has a privilege to enter her neighbor's land, the entry is actionable. If a privilege exists, it is because the intruder has identified a privilege the general law of trespass recognizes. A neighbor has no more of a privilege to cross the boundary of privately-owned adjoining land than a person who is a total outsider, a stranger. For example, a person whose animal accidentally wanders onto land owned by another person has a privilege to enter to retrieve the animal.⁸ That privilege is not a neighbor's privilege; it applies no differently whether the animal's owner lives next to the land where the animal has gone, or whether the animal's owner lives many miles away.

The stranger model applies not only to tort rules that protect a person's property and person from a neighbor's wrongful conduct, but also to other bodies of law. For example, there is no special body of contract law to govern agreements entered into among neighbors. Neighboring owners frequently enter into consensual arrangements, serving various purposes. They may agree to build a fence or plant a hedge, to be located on their common boundary line, and thereafter maintain it jointly. One owner may desire access across her neighbor's parcel...