Posted by: Patricia Salkin | March 30, 2015

VT Supreme Court Established Dominant Purpose Test for Determining Existence of a Spite Fence

The parties of this case were adjoining property owners, the Obolenskys and the Trombleys.  Soon after the Trombleys built their home, Mrs. Obolensky commissioned a surveyor to conduct a boundary survey, and placed “no trespassing” signs on a location that she believed was within her lot. 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. Things escalated further when Mrs. Obolensky and her guests walked onto the mowed area claimed by the Trombleys and Mrs. Obolensky exposed her backside toward the Trombleys and a man with her  urinated on the lawn. The charge brought by the Trombleys was dismissed after Mrs. Obolensky successfully completed a diversion program. On June 30, 2011, the superior court issued an order that: (1) established an agreed-upon boundary line based on a survey done by the Trombleys’ surveyor; (2) called for an independent surveyor to mark the boundary corners; and (3) provided that the parties “shall each be entitled to erect and maintain any fence allowed by law.”

Following this, the Obolenskys began the process of building a wooden stockade fence that stood six feet, one inch tall—the maximum height allowed by the local town ordinance without a permit—and had put signs on the fence facing the Trombleys’ property reading: “NO TRESPASSING, POLICE TAKE NOTICE” and “POSTED, PRIVATE PROPERTY.” The Obolenskys also had the fencing company place a single-strand barbed wire fence along what they considered to be the common boundary to the north of the Trombleys’ property, and planted twenty-two evergreen trees on their property: obstructing the Trombleys’ mountain view. The Trombleys filed a post-judgment motion, seeking a declaration that Obolenskys’ stockade fence was an unlawful spite fence erected in violation of the underlying order, an injunction ordering its removal, and damages and injunctive relief for trespass in connection with the wire fence encroaching on the northern boundary of their property. The Obolenskys then appealed, principally challenging the court’s grant of injunctive relief requiring them to alter their stockade fence.

The “spite-fence” statute, 24 V.S.A. § 3817, provides: “A person shall not erect or maintain an unnecessary fence or other structure for the purpose of annoying the owners of adjoining property by obstructing their view or depriving them of light or air.”  The court first addressed the question of whether the spite-fence statute requires that the purpose of annoying the adjoining property owner be the sole purpose of the fence, or merely the dominant purpose. The dominant purpose test was adopted to balance the interests of privacy with the harm to the neighbors, and under it the plaintiff needed to show that in the absence of intent to annoy, the fence would not have been built or maintained. After balancing the Obelenskys’ hostility toward the Trombleys with the necessity of the fence, the court held that the trial court’s findings with respect to the stockade fence were supported by sufficient evidence.

Obolensky v Trombley, 2015 WL 1186187 (VT 2/6/2015)

The opinion can be accessed at:

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