Bruce Vielmetti

Milwaukee Journal Sentinel

FOX POINT - In a battle of property rights, who has the better claim — one who enjoys trees or one who wants a clear view of Lake Michigan?

As often happens, a jury may decide this neighbor dispute that invokes the common law spite fence and midcentury modern design aesthetic.

Office furniture executive Scott Mullins was pretty excited about his new home on Beach Court in Fox Point that he purchased in 2016. As contractors refurbished the 1957 gem, he trimmed trees in the yard to enhance the view of Lake Michigan about 60 yards away.

But there were other branches in the way. Perhaps inspired by the saying it is easier to seek forgiveness than permission, he went into his new neighbor's yard and cut 150 more, without her knowledge.

Mullins got his view, but also a pair of municipal citations for trespassing and injuring plants.

He pleaded guilty, paid $355 in fines and his wife, Laura, apologized to Kathe Lake in a handwritten note:

"We are guessing you, like us, chose the neighborhood because of the location and the amazing view. Regretfully, the priority of our view overtook the higher priority of neighborliness in this situation and we sincerely apologize for this."

"We would like to seek a new beginning to our relationship and ask for your forgiveness."

Instead, Lake sued the Mullinses for trespassing, destruction of property and conversion. The suit accused them of acting with reckless disregard and malicious intent.

As the trial date approached in May 2017, the two sides agreed to a dismissal.

A lawsuit ends and the story just begins

That's not the end of the story. It's just where it gets interesting.

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Nine days after a judge signed the order dismissing the suit, Lake had three pine trees planted in her yard and then 18 birches a couple of days later. In July, she added three more pines.

That's all according to the lawsuit the Mullinses then filed against Lake, later in 2017. They say Lake intentionally placed the new trees to block their view of Lake Michigan, diminishing the value of their home by at least $250,000. The home, purchased in January 2016 for $505,000, is assessed for tax purposes at $594,100. Lake's home is assessed at $531,500.

The lawsuit contends Lake's trees amount to a spite fence in violation of common law and state statutes. Another claim says her "existing overgrown trees" are a private nuisance that invade the Mullins' interest in the "private use and enjoyment of their land."

A spite fence: What the law says

American property law frowns on spite fences in general.

Wisconsin law says, "Any fence, hedge or other structure in the nature of a fence unnecessarily exceeding 6 feet in height, maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance."

The Mullinses' lawsuit calls Lake's conduct "extreme and outrageous" and seeks damages for intentional infliction of emotional distress. The suit asks for punitive damages and an order that Lake remove the new trees and raise the canopy on her mature trees to at least 11 feet.

Lake declined to talk about her trees and the ongoing issues with the Mullinses. Neither her lawyer, the Mullinses' lawyer or Scott Mullins returned messages.

In July, she sought a protective order barring her deposition in the case from being videotaped by the Mullinses. In a sworn affidavit, Lake said she felt the plaintiffs' video request was intended to "annoy, embarrass, harass and intimidate" her.

Lake described three incidents in the spring in which she felt Scott Mullins rode his bike nearer to her than necessary as she walked or stood along Beach Drive.

The same motion says that Lake wasn't being spiteful by adding to her landscape, only trying to mitigate the damage Mullins had done.

Pruning or butchery?

Her answer to the suit takes issue with the Mullinses' use of the term "pruning" to refer to what he did to her trees. An arborist she might call as an expert at trial, Jim Uhrinak, called it "butchery."

In a letter about the situation filed in the case, Uhrinak referred to the Mullins' cutting Lake's trees and then suing to preserve a view he unlawfully created as "classic bully behavior."

Both sides have lined up real estate agents to talk about the potential impact of Lake's landscape on the Mullins' property value. The Mullinses' expert reported that the restricted lake view might have anywhere from a $160,000 to $260,000 negative impact on the selling price.

The report suggests that Fox Point's assessed value of $594,000 may not have accounted for the Mullinses' updates and that a fresher appraisal puts the home's market value at $970,000.

Lake's real estate expert estimates that if the Mullinses' home was classified as having a partial lake view, the impact on the potential price might be, at most, $20,000.

No trial date has been set, but the two sides are scheduled to meet later this month before Milwaukee County Circuit Judge Clare Fiorenza for a status conference.