In this assignment, you will apply riparian rights from your state to a fact pattern, which will teach you about the law. Additionally, understanding the nature of riparian law will gain you understanding about other interferences with neighboring properties, such as planting a tree on a property line or making constant loud noises that neighbors can hear.

Assignment: You have been asked by an attorney in your law firm (your professor), to prepare a memorandum addressing the facts below. The attorney would like to know what Mrs. Lowe can do about the water running through her property. Does she have any legal recourse?

Interview: You interviewed Mrs. Lowe and find out she lives near a river and is having new water troubles. Recently, her neighbor, Mr.Heigh, built a short retaining wall to prevent water from the river from overflowing and damaging his property. His wall was built5 feet away from his vegetable garden and within his property lines. He built the wall to save his vegetable garden, which he has had for 20 years. He is a friendly neighbor and gives theLowesvegetables every year. Mrs. Lowe and her family were friends with theHeighsuntil the wall was built. Now, her property is flooded by the water from Mr.Heigh'sproperty due to the new retaining wall. The retaining wall protects his property but has diverted the water onto her property. The water nowruns downhill in a new path that crosses part of Mrs. Lowe's yard. The water is not deep but constant dampness is causing a problem in her yard. The width of the line of water is 18 inches. It has become difficult to mow the area and the yard is beginning to develop a trench where the water runs. Mrs. Lowe has repeatedly discussed the issue with Mr.Heighand requested that he move the wall to save her yard. Mr.Heighsays will not move the wall due to unnecessary expense.

Research: (1) textbook reading materials (2) riparian rights in your state.Use only reliable sources for your Memorandum of Law. Reliable sources are: cases,statutes, legislation, and secondary legal sources like law encyclopedias, treatises, or law reviews. Attorney websites may be used to locate reliable sources and may offer basic understanding of the law, but do not use, quote, or paraphrase them.

Use proper legal citation for case law. When needed, use appropriate APA citation method. APA style manual samples are available onlineat:https://www.regent.edu/centers/academic_resources/writing_center/

A sample Memorandum of Law on another subject matter is located in your Week 3: Study materials for your review of the format and requirements. Part of your grade depends on this format.

Turnitin is used for this assignment (see your syllabus for details about this grading tool).

Sample Office Memorandum

OFFICE MEMORANDUM

To: Attorney A

From: Paralegal 1

Re: Seafarer v. Acacia

Case No: Civ. 10-100

STATEMENT OF THE ASSIGNMENT

You have asked me to prepare a memorandum addressing the following question: Does our client, Mr. Acacia, have any restriction in California regarding planting trees in a line on his property, which partially obstructs a neighbor's view of the ocean?

ISSUE

Whether planting a row of trees on private property, which obstruct a neighbor's view of the ocean, is considered a nuisance?

BRIEF ANSWER

No. California Civil Code3479 states: "Anything which is... an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance." However,California Civil Code 841.4 requires that the obstruction be "maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property."

FACTS

Mr. Acacia owns a single family dwelling located on ocean front property. He plans to plant a row of trees between his home and the beach to prevent strong winds, which come from the ocean, from affecting the safety of his home. He has lost shingles from his roof, torn off by winds. The home's insulation is also affected by the winds. The trees will grow 20 feet tall over time and will effectively assist Mr. Acacia with his home issues. His next door neighbor, Mr. Seafarer, is also located on the shore line and shares the ocean front view. He has filed an injunction to prevent Mr. Acacia from planting the trees. Mr. Seafarer alleges thatthe trees will obstruct his view of the ocean and are a nuisance.

ANALYSIS

The city in which Mr. Acacia resides does not have an ordinance regarding obstruction of views. However, nuisance is addressed in the California Code: "Anything which is.... an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property... is a nuisance," (Cal. Civ. Code 3479). The question is whether trees are included within the intent of the statute since they grow naturally on the property and they enhance the value of property.

In our case, although the trees will obstruct part of Mr. Seafarers's ocean view, they will offer his home protection from wind. Mr. Seafarer will be able to use and enjoy his property and also enjoy the shade and beauty the trees offer.

Case law governing the issue isWilson v. Handley, 97 Cal. App. 4th1304 (2002), where the court held that trees planted in a row may be deemed a fence and therefore a possible nuisance. The court analyzed the effects of a row of trees and decided that a row of trees 10 feet tall has the same effect as a fence 10 feet tall. In California, fences 10 feet tall can potentially be a nuisance (Cal. Civ. Code 841.4). Mr. Acacia's row of trees will be a fence for the purposes of California statutes regarding obstruction and nuisance.

California Civil Code 841.4 states: "Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance." The California Appellate Court addressed the issue of trees inHandley, wherethe defendant planted a row of trees "for aesthetic purposes and to protect their privacy," (Wilson v. Handley, 2002). Although the row of trees was deemed a fence by the court, the requirement of malice was found to be absent and the row of trees was not deemed a nuisance.

Mr. Acacia's case is likeWilson v. Handleyin that Mr. Acacia has no malicious intent. Mr. Acacia's purpose in planting a row of trees is to enhance his property and protect it from the elements of the ocean winds. Although his row of trees is a "fence" under California law, it is not a "nuisance."

CONCLUSION

Wilson v. Handley,97 Cal. App. 4th1304 (2002), established that a row of trees over 10 feet in height is deemed a fence withinthe meaning of California Civil Code 841.4. Section 841.4 states that fences "exceeding 10 feet in heightmaliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance." In our case, Mr. Acacia has no malicious intent; he will plant trees for enjoyment and protection. Therefore, his trees will not be a nuisance under California law.

RECOMMENDATIONS

1. We should examine the injunction filed by Mr. Seafarer to determine if there are allegations of malice committed by Mr. Acacia.

2. We should determine if Mr. Acacia and Mr. Seafarer exchanged any words regarding the trees, which might indicate a malicious intent.

3. It would be prudent to interview Mr. Acacia's other family members and neighbors to question them about potential past disagreements between the two parties, which may indicate retaliation or other motive for malice.