Summary
The Vermont Supreme Court affirmed a superior court order requiring property owners to modify a stockade fence determined to be an unlawful spite fence under 24 V.S.A. § 3817. The Court adopted the dominant-purpose test for determining whether a fence was erected primarily to annoy adjoining property owners, and upheld findings concerning trespass, injunctive relief, nominal damages, and attorney’s fees.
Topics
Practice areas
Questions Presented
- Whether Vermont's spite-fence statute, 24 V.S.A. § 3817, requires that annoyance be the sole purpose of a fence or permits relief when annoyance is the dominant purpose.
- Whether the superior court's factual findings and conclusion that the stockade fence was a spite fence were supported by the evidence.
- Whether the parties' stipulated order permitting fences allowed by law, or the fence's compliance with local zoning and permitting requirements, precluded a finding that the fence violated the spite-fence statute.
- Whether the superior court improperly relied on 24 V.S.A. § 3801 as a reference point for determining a reasonable fence height.
- Whether the superior court erred in rejecting the Obolenskys' claims concerning poisoned trees, cutting of vegetation, and deposited debris.
- Whether the superior court abused its discretion by declining to hold Robert Trombley in contempt for mowing grass on the narrow strip between the fence and the boundary.
- Whether the superior court exhibited regional bias by referring to the parties' residences and employment.
Holdings
- A fence violates 24 V.S.A. § 3817 when the dominant purpose of annoying the adjoining owner is manifest and leading, the fence's legitimate utility is subordinate and incidental, and the fence would not have been built or maintained absent the intent to annoy; annoyance need not be the fence's sole purpose.
- The superior court properly found that the Obolenskys' stockade fence was an unlawful spite fence and properly ordered it modified.
- A stipulated order allowing the parties to erect and maintain any fence allowed by law did not authorize a fence prohibited by the spite-fence statute, and compliance with local zoning or permitting requirements did not preclude a statutory spite-fence violation.
- The superior court properly used 24 V.S.A. § 3801 as a reference point in determining a reasonable fence height; it did not apply that statute as a mandatory partition-fence requirement.
- The superior court did not err in finding that the Obolenskys failed to prove by a preponderance of the evidence that the Trombleys poisoned their evergreen trees.
- The superior court did not abuse its discretion by declining to hold Robert Trombley in contempt, even though it found that he trespassed by cutting grass on the Obolenskys' property.
Key quotations
“Under the test we adopt, a plaintiff still must show that the fence would “strike an ordinary beholder as manifestly erected with a leading purpose to annoy the adjoining owner or occupant in his use of his premises.”” (¶ 25)
“This “manifest,” “positive,” and “leading feature” of the fence must be “so predominating as a motive as to give character to the structure,” with any “real usefulness of the structure” being “manifestly subordinate and incidental.”” (¶ 25)
“A fence that falls within this category is thus not “allowed by law” as the agreement recites.” (¶ 34)
Factual background
The parties owned adjoining properties in Brandon, Vermont. After entering a stipulated order establishing the boundary and permitting fences allowed by law, the Obolenskys constructed a six-foot-one-inch solid stockade fence just inside the boundary, placed provocative signs on it, and planted twenty-two evergreen trees that obstructed the Trombleys' mountain view. The superior court found that the fence was unnecessary for the Obolenskys' legitimate purposes and that its dominant purpose was to annoy the Trombleys, while also finding trespasses involving a barbed-wire fence, fence construction, and mowing of grass. The court ordered the stockade fence reduced to four-and-one-half feet with a six-inch ground clearance, ordered relocation of the encroaching wire fence, awarded nominal damages and fees, and rejected the claim that the Trombleys poisoned the trees.
Procedural history
The parties resolved the underlying boundary dispute through a stipulated order entered June 30, 2011. After subsequent construction of fences, planting of trees, alleged trespasses, and related disputes, the superior court held a multi-day hearing and site visit. The court found the stockade fence to be an unlawful spite fence, ordered its modification, awarded nominal damages and attorney's fees on several trespass claims, rejected the Obolenskys' poisoning and vegetation claims, and declined to hold Robert Trombley in contempt. The Obolenskys appealed, and the Supreme Court of Vermont affirmed.