Thursday, June 25, 2015

Something There Is That Doesn’t Love A Wall

Obolensky v. Trombley, 2015 VT 34

By Elizabeth Kruska

If good fences make good neighbors, I suppose the exact opposite is true if the fence in question is actually called a “spite fence.” A spite fence is an actual thing, and it’s exactly what it sounds like: a fence put up specifically to annoy a neighbor.

The Obolenskys owned some land and operate a bed and breakfast on the land. They have a nice view of the mountains. About 9 years after they bought their land, the Trombleys bought the parcel next door and built a house on their own land. Their house is, at its nearest point, thirty-seven feet from the Obolenskys’ land. 

The Obolenskys didn’t like this. They hired a surveyor to check the boundary, and put up some “no trespassing” signs. The opinion isn’t totally clear, but the signs might’ve been on the Trombley’s property. This didn’t go well, the police got called, and eventually the Obolenskys filed a lawsuit.

Mrs. Obolensky got charged with trespass in 2009 following an incident where she and some other folks went onto the Trombley’s land, urinated on it, and mooned the Trombleys. These are actual grown-up-adult people who thought mooning the neighbors would solve a problem.

There was also an incident of the Obolenskys hiring a fencing company to put up a fence, and starting work very early in the morning. At one point they put up a barbed wire fence. The Obolenskys also planted a bunch of trees to serve as a screen. Some of the trees died and they blamed the Trombleys for poisoning the trees.

The legal problem here involved the Obolenskys’ fence. It was a very tall stockade-type fence that went all the way to the ground, and was positioned just back from the boundary line. This created a situation wherein the Trombleys could not mow up to the fence without trespassing on the Obolenskys’ property. The Obolenskys also could not maintain that side of the fence without trespassing onto the Trombley property. As a result, the grass in that narrow strip became very floppy and unkempt and went over onto the Trombley property, and the lack of maintenance also caused drainage issues which led to water pooling in the Trombleys’ yard. The Trombleys took the Obolenskys to court, alleging that the fence was an unlawful spite fence, and asked for an injunction to have it removed.

The trial court found that the purpose of the fence was not to mark the boundary, but to be irritating to the neighbors. The trial court ordered that the height of the fence be reduced, and to make space between the bottom of the fence and the ground. The Court also took up questions of trespass by each of the neighbors on one another’s property and ultimately awarded the Obolenskys $396.

The Obolenskys appealed the fence order. SCOV affirmed. They made lots of arguments, and SCOV rejected all of them.

First of all, SCOV reviews injunctions for abuse of discretion, and finds here that the trial court did not abuse its discretion in making the order to alter the fence.

Vermont has a spite fence law, which, unsurprisingly, doesn’t have a lot of case law to interpret it. We have one case from 2008, and SCOV takes a look at it. There are two different tests that a court could use to interpret a spite fence law. There’s the dominant-purpose test and the sole-purpose test.

The dominant-purpose test, which some other states follow, is used to determine the intent behind a fence. If the court finds that the “dominant” purpose of the fence is to annoy someone, then it is a spite fence. If there are other, legitimate purposes for the fence, but it also just happens to irritate someone, then it’s not a spite fence. The five other New England states follow this test.

There’s also the sole-purpose test, which is exactly what it sounds like. A fence is a spite fence, if there’s no beneficial use to the owner, and the whole point of the fence is to annoy a neighbor. If there’s any beneficial use of the fence to the owner, then the fence fails this test.

Vermont decides to join the New England crew and goes with the dominant-purpose test. There could always be various reasons to put up a fence, and this test allows the court to balance a property owner’s concern for his own land with the annoyance factors for his neighbors.

The Obolenskys tried to argue to SCOV that the trial court made incorrect factual findings based on testimony. SCOV responds that it’s within the province of the trial court to determine credibility of witnesses. There are findings consistent with the testimony, so SCOV leaves this alone.

They also argue that a pre-existing settlement should have been given different effect. The parties, some time before, came to an agreement that each side could put up a fence so long it was consistent with the law. The Obolenskys reasoned that they put up a fence and that the town told them they didn’t need a permit, so their fence was legal. They argue that this cuts against the finding that the fence was a spite fence.

SCOV disagrees with this, too. Although the settlement said they could put up fences, this particular fence was a spite fence. Whether or not a permit was needed isn’t relevant. The Obolenskys also took issue with the fact that the trial court referenced a law regarding the height of fences needed for livestock.

Isn’t it where there are cows? Here there are no cows.

SCOV says whether or not there’s livestock is irrelevant. The trial court’s reference to that law was just to get a starting point for a reasonable height for fencing.

The Obolenskys also make some other claims, like that the Trombleys poisoned their trees with road salt. The trial court said the Obolenskys didn’t prove this by a preponderance of the evidence.

The Obolenskys also claim that the trial court was biased against them because they split their time between New York and Vermont, whereas the Trombleys live in Vermont year round. SCOV takes bias pretty seriously, but points out that this was a bench trial, not a jury trial. Since it was just a judge hearing the evidence and not a jury, the issue of bias is diminished. A judge can put aside issues that might be sticking points for a jury, so SCOV finds there’s no problem here.

Last, the Obolenskys appealed the fact that the trial court didn’t hold Mr. Trombley in contempt for mowing the floppy grass in the strip of land between his boundary and the fence. Although he technically violated their prior order and he trespassed, the court found that he wasn’t acting unreasonably by maintaining that space. SCOV also notes that the trial court found that he trespassed and awarded the Obolenskys damages based on that. That award - $100 – was nominal because the Obolenskys created an untenable situation by putting the fence in a spot that would prevent maintenance without someone trespassing on the other’s land. Furthermore, when they went onto the other side of the fence to maintain it, they also violated the order by trespassing.

So, SCOV affirms.

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