Shedding Light on Some Problems in Louisiana Solar Energy Law
-Joseph Stanier Manning, J.D./C.L. 2013, Paul M. Hebert Law Center, Louisiana State University.
After you have spent thousands of dollars installing solar panels, your neighbor decides to plant several trees. These trees block the sunlight and your investment is ruined. What can you do? These kinds of disputes are already occurring and as solar power becomes more cost effective, they will only become more common. In many states, a party can establish a “right to light” by getting an easement or through nuisance law. In Louisiana, however, this is not so simple. Servitudes, the civil law equivalent to easements, arise under such narrow circumstances that they are not applicable to protecting a “right to light” for solar energy. Meanwhile, the Louisiana Civil Code specifically refers to blocking light as an “inconvenience” and not a nuisance. This problem is overcome only by interpreting the article in pari materia with a more recent statute protecting the use of solar collectors. Still, the Louisiana legislature needs to eliminate the statement that blocking sunlight is merely an inconvenience and not a nuisance in light of the changing importance of access to sunlight.
“Servitude” is used in the civil law to describe the same idea embodied by “easements” in the common law. Under Louisiana law, two types of servitudes are relevant regarding access to sunlight: servitude of view and servitude of light. A servitude of view gives a landowner the right to enjoy a view. This includes the right to prevent another from obstructing that view, such as preventing another from raising otherwise legitimate constructions or trees on their own land. By contrast, a servitude of light gives a landowner the right to make openings in a common wall between two properties for the admission of light; this likewise includes the right to prevent the neighbor from making an obstruction. The existence of these servitudes can prevent others from raising obstructions that block sunlight or views.
Unfortunately, the Louisiana law governing servitudes will likely not help solve a dispute between two neighbors when one blocks another’s solar panels, because the circumstances giving rise to a servitude are too rare. Servitudes are created only by title, by destination of the owner, or by acquisitive prescription (i.e., common law adverse possession). Creation by title requires a juridical act translative of ownership. This means that if a dispute has arisen between two neighbors, a legitimate servitude by title essentially requires the neighbor with the trees consent to give away a servitude to the other through a contract, such as a sale or a donation. Considering the existence of an ongoing dispute, the chances are unlikely that a party will simply agree to give the other the right to tear down trees or constructions placed on the property. Acquiring a servitude by destination also requires a rare set of circumstances: at some time in the past the same person must have 1) owned both pieces of land, and 2) filed a formal declaration registering that servitude in the parish records. This leaves only acquisitive prescription, which applies exclusively to apparent servitudes (those which have perceivable exterior signs) and which accrues only after a minimum of ten years in Louisiana. However, access to sunlight is generally non-apparent because there are no exterior signs. Access to sunlight arises precisely by virtue of there being nothing in the way to block sunlight. Thus, servitudes of light or view, while technically possible, require such precise conditions to arise that they offer little practical help in solving this kind of dispute.
Additionally, the plain text of the Louisiana Civil Code on nuisance law, when read literally, offers no protection to a person whose solar collectors have been cut off from sunlight by another. “As a general rule, the landowner is free to exercise his rights of ownership in any manner he sees fit.” This broad right is subject to some limitations though. The Civil Code distinguishes between damage and inconvenience caused by use of the land: a landowner’s extensive rights do not encompass uses that cause “real damage” to any neighbors, but some inconveniences are allowed.While a reasonable interpretation of the Code may consider cutting power to solar collectors as damage rather than mere inconvenience, this interpretation is problematic because the Civil Code goes on to state specifically that casting a neighbor’s property into shade is an “inconvenience” and not a nuisance: “he who is not subject to any servitude . . . may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbor’s house, because this act occasions only an inconvenience, but not a real damage.”
Nevertheless, there is a ray of sunshine for the homeowner seeking to protect an investment in solar panels: the Louisiana legislature enacted a statute protecting investors of solar panels.However, this provision is in conflict with Article 668. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” Applying the plain language of Article 668 to a dispute over solar panels leads to an absurd result: cutting off power supply to a home would be classified as an inconvenience instead of damage. Having some sunlight blocked was once simply an inconvenience. At most, obstructing sunlight may have caused some plant death. However, with the advent of solar energy, we know that interfering with the power supply to a person’s home is a definite damage. This absurd result compels us to search further for legislative intent.
Louisiana Revised Statutes section 9:1255 (Statute) states unequivocally that “[n]o person or entity shall unreasonably restrict the right of a property owner to install or use a solar collector.” “Laws on the same subject matter must be interpreted in reference to each other,” or in pari materia. “[S]tatutes addressing a particular subject matter manifest a common legislative policy or legal concept. Thus, ambiguities, inconsistencies, and omissions properly may be resolved by looking to other statutes on the same subject.” The legislative intent behind the Statute embodies a public policy to protect investors in solar energy from unreasonable disturbance. This intent to protect from unreasonable disturbance mirrors the analysis under nuisance law, which revolves around reasonableness. So, although the Civil Code specifically characterizes the blocking of sunlight as a mere inconvenience, courts should not apply this language strictly, thereby refusing to consider a nuisance claim altogether. Rules applied mechanically or uncritically can produce results contrary to the purpose for which they were enacted in the first place. As a result, courts should not mechanically classify every instance where an owner suffers having property cast into darkness as a mere inconvenience – if a dispute revolves around solar collectors, the court should pay attention to the legislative intent behind the Statute and consider the possibility that a nuisance has been suffered.
Not every instance of a landowner’s property being cast into darkness by a neighbor’s trees or constructions is mere inconvenience – some circumstances may rise to nuisance. Currently, Louisiana Revised Statutes section 9:1255 should be read alongside the Civil Code to protect those who invested in solar energy. However, in order to clarify the distinction between nuisance and inconvenience in these cases, it is time to remove the specific example in Article 668 from the Civil Code altogether.
Preferred citation: Joseph Stanier Manning, Shedding Light on Some Problems in Louisiana Solar Energy Law, LSU J. Energy L. & Res. Currents (August 31, 2012), http://sites.law.lsu.edu/jelrblog/?p=7.
 Felicity Barringer, Trees Block Solar Panels, and a Feud Ends in Court, N.Y. Times, Apr. 7, 2008, http://www.nytimes.com/2008/04/07/science/earth/07redwood.html?pagewanted=all.
 Tawny L. Alvarez, Don’t Take My Sunshine Away: Right to Light and Solar Energy in the Twenty-First Century, 28 Pace L. Rev. 535, 537 (2008).
 Peter S. Title, 1 La. Prac. Real Est., Dismemberment of Ownership – Predial Servitudes § 3:9 (2d ed.). But see Arkansas Louisiana Gas Co. v. Cutrer, 30 So. 2d 864, 866(La. App. 2d Cir. 1947) (“[A]n easement or right of way under the common law is not necessarily legally identical with a servitude. . . .”).
 La. Civ. Code Ann. art. 701 (2012).
 La. Civ. Code Ann. art. 703 (2012).
 A. N. Yiannopoulos, 4 La. Civ. L. Treatise: Property, Predial Servitudes § 135 (3d ed.).
 There are two kinds of servitudes: apparent and non-apparent. La. Civ. Code Ann. art. 707 (2012). Apparent servitudes are perceivable by exterior signs (like a window in a wall). Id.Nonapparent servitudes have no exterior sign of their existence. Id. “Apparent servitudes may be acquired by title, by destination of the owner, or by acquisitive prescription.” La. Civ. Code Ann. art. 740 (2012). The only way to get a nonapparent servitude is by title or if it was already there by way of destination. Id.
 E.g., a sale, exchange, or donation. See La. Civ. Code Ann. art. 3483 (2012).
 La. Civ. Code Ann. art. 741 (2012).
 La. Civ. Code Ann. art. 3473 (2012).
 Rodrigue v. Copeland, 475 So. 2d 1071, 1077 (La. 1985).
 La. Civ. Code Ann. art. 667 (2012).
 Rodrigue, 475 So. 2d at 1077; see also La. Civ. Code Ann. art. 668 (2012) (“[E]very one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.”).
 La. Rev. Stat. Ann. § 9:1255 (Supp. 2012).
 La. Civ. Code Ann. art. 9 (2012).
 La. Rev. .Stat. § 9:1255 (Supp. 2012).
 La. Civ. Code Ann. art. 13 (2012).
 P. Raymond Lamonica and Jerry G. Jones, 20 La. Civ. L. Treatise: Legislative Law and Procedure, Statutory Construction: Procedure and Process § 7.7 (2011 ed.).
 “In determining whether a work or activity occasions real damage or mere inconvenience, a court is required to determine the reasonableness of the conduct in light of the circumstances.” Atkins v. Six C Properties, L.L.C., 45,682 p. 7 (La. App. 2d Cir. 11/3/10); 55 So. 3d 120, 125.
 Symeon C. Symeonides, Louisiana’s New Law of Choice of Law for Tort Conflicts: An Exegesis, 66 Tul. L. Rev. 677, 764 (1992). Article 668 ought to serve as an example of why the civilian methodology avoids specifics and sticks to broader principles instead. As Portalis stated: “The role of legislation is to set, by taking a broad approach, the general propositions of the law, to establish principles which will be fertile in application, and not to get down to the details. . . .” Alain Levasseur, Code Napoleon or Code Portalis?, 43 Tul. L. Rev. 762, 769 (1969).