The Case of the Spite Fence

Action for abatement of an alleged spite fence erected by D on his property, which abuts and faces P's property. The complaint alleges that D has erected a spite fence as defined by Property Code §2022. Section 2022 defines a spite fence as any fence exceeding 15 feet in height or a fence of less than 15 feet that is constructed or decorated in a manner not conforming to prevailing standards.

The case is tried to a jury, and the crucial question is whether the fence erected by D is a spite fence within the meaning of the Code. On this issue P testifies as to his ownership of his property and that D erected a fence on D's adjoining property that faces P's house. On P's motion and on order of the court, the jury takes a view and observes the fence. In some spots the fence is 15 feet high, but in other spots it is less than 15 feet. However, along the entire length of the fence on the side facing P's property are paintings that are repulsive by any standard. When court reconvenes, P rests.

D moves for a nonsuit. Should it be granted? On what rationale?

What kinds of problems does taking a view create? For example, must a court reporter be present at the view? Must the judge? Must counsel be present? What safeguards should be taken to ensure that only the right objects are viewed, that conditions are substantially the same at the time of the view as the time of the occurrence in issue, and that no hearsay or other unsworn evidence is obtained by the viewers at the scene? What if conditions have changed since the time of the incident? Must the accused in a criminal case be present at a view? May a view be taken beyond the jurisdiction of the trial court? Does a defendant in a criminal case have a constitutional or other right to demand that the jury take a view of the scene of the crime or other relevant place? If some members of the jury take an unauthorized view of the scene of the crime, what effect does it have on the defendant's rights?