Moonlight In Vermont
An interesting decision from the Vermont Supreme Court last week involved warring neighbors and the construction of a “spite fence” at issue in the appeal.
The parties are adjoining property owners in the Town of Brandon. Michael and Jirina Obolensky own forty acres of land, which they purchased in 1995. The Obolenskys operate a bed-and-breakfast in a large Victorian house located at the lower eastern end of the property. Although not directly visible from their house, there is a beautiful view of the mountains from the highest part of the land, accessible by walking from the house uphill through a field. The adjoining property owners are Robert and Sandra Trombley, who purchased 3.7 acres of land in 2004 and built a home on the lot two years later. The Trombleys’ lot is at the top of the rise, adjacent to the Obolenskys’ field; the Trombleys have a direct view of the mountains. The exterior wall of their house is thirty-seven feet from the common boundary with the Obolenskys at its nearest point.
Soon after the Trombleys built their home, the Obolenskys commissioned a surveyor to conduct a boundary survey. In fall 2007, Mrs. Obolensky placed “no trespassing” signs on a location that she believed (based on the Obolenskys’ boundary survey) was within her lot. The signs were placed at a location eight feet within an area also claimed by the Trombleys, who had mowed the lawn in the area. An acrimonious dispute followed, culminating in a call to the police. The police permitted Mr. Trombley to remove the signs that the Obolenskys had placed on the lawn. The Obolenskys subsequently filed suit to determine the boundary, and also raised claims of trespass.
A criminal charge was filed against Mrs. Obolensky in the fall of 2009 following an incident in which she and guests walked onto the mowed area claimed by the Trombleys, Mrs. Obolensky exposed her backside toward the Trombleys, and a man in her group urinated on the lawn. The charge was dismissed after Mrs. Obolensky successfully completed a diversion program.
As to the Obelensky’s “spite fence”
We join our sister courts of New England in adopting the dominant-purpose test. As the Rhode Island Supreme Court explained, “[t]he very nature of a fence is such that privacy could always be given as the reason for erecting it,” even when the evidence shows “egregious,” “malicious intent” which “plainly outweighs” any benefit gained by the erector of the fence. Dowdell, 847 A.2d at 831. We emphasize, however, that the dominant-purpose test and the sole-purpose test are not far apart in practical terms. 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.” Gallagher, 48 Conn. at 393. 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.” Id. at 392-93; see also Hunt, 20 A. at 250 (stating that motive of annoyance must be “controlling”). In addition, for a fence to be considered a “spite fence” within the meaning of the statute, the plaintiff must show that in the absence of intent to annoy, “the fence would not have been built or maintained.” Lord, 39 A. at 552; Rideout, 19 N.E. at 392 (same). We think that this rule most carefully balances the competing concerns of protection of property rights and the discouragement of pointless inflictions of harm among neighbors.
Here
we find that the evidence admitted at trial supported the trial court’s findings and conclusions. The court properly considered the history of intense animosity and conflict between the parties. Alberino, 2008 VT 130, ¶ 9 (“The cases are uniform in their approval of reliance on the history of relations between neighbors as evidence of intent to annoy.”). There was ample credible evidence to support the finding of the Obelenskys’ hostility toward the Trombleys. Moreover, the court properly considered the credibility of the Obolenskys’ claimed reasons for building the fence, and the usefulness or uselessness of a fence for purposes of privacy, security, and quiet enjoyment. See id. ¶¶ 6-14 (noting that it was proper for trial court to consider fact that fence was “an ugly wall” and that it did not objectively protect defendant’s privacy, ward off wandering dogs, or lessen noise of their barking); accord Gallager, 48 Conn. at 393 (considering structure’s “character, or location, or use” in determining its leading purpose).
In reaching its conclusion, the court did not improperly ignore the legitimate purposes of the fence identified by the Obolenskys. The court acknowledged that the fence provided them some privacy, although the trees also did so. The court did not credit the Obolenskys’ testimony that the fence was necessary to protect them and their guests from the Trombleys’ spying, or that it was necessary because Mrs. Obolensky lived in a state of fear of the Trombleys.
We conclude that the trial court’s findings with respect to the stockade fence were supported by sufficient evidence, and that its conclusions were supported by its findings.
The lower court order is linked here. (Mike Frisch)