










2015 VT 34











Obolensky v. Trombley (2013-418)
 
2015 VT 34
 
[Filed 06-Feb-2015]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 



2015 VT 34



 



No. 2013-418



 



Michael Obolensky and Jirina
  Obolensky


Supreme Court




 


 




 


On Appeal from




     v.


Superior Court, Rutland Unit,




 


Civil Division




 


 




Robert Trombley and Sandra
  Trombley


December Term, 2014




 


 




 


 




Mary
  Miles Teachout, J.




 



Michael N. Obolensky and Jirina C. Obolensky, Pro Se,
Brentwood, New York,
  Plaintiffs-Appellants.
 
Sandra L. Trombley and Robert A. Trombley, Pro Se, Brandon,
Defendants-Appellees.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and
Eaton, JJ.
 
 
¶ 1.            
ROBINSON, J.   Property owners appeal from the superior
court’s order requiring them to alter what the court deemed to be a “spite
fence” located near adjoining property owners’ land, and challenge the court’s
judgment concerning two instances of trespass.  We affirm.
I.  Facts
¶ 2.            
The trial court made the following factual findings in connection with
several post-judgment motions in this case.  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.
¶ 3.            
 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.
¶ 4.            
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.
¶ 5.            
On June 30, 2011, the superior court issued an order resolving the
underlying case based on the parties’ stipulation.  Among other things,
the stipulated order (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.”
¶ 6.            
The current appeal relates to the trial court’s rulings on a host of
post-judgment motions arising from subsequent events.  We summarize the
court’s findings concerning those events here, discussing in more detail the
findings related to the Obolenskys’ claims of error.
¶ 7.            
First, at 5:30 a.m. a few days after the parties signed the stipulation,
a contractor hired by the Obolenskys began the process of building a wooden
stockade fence along most of the eastern boundary of the Trombleys’ property.
 That fence stands six feet, one inch tall—the maximum height allowed by
the local town ordinance without a permit—and consists of solid narrow wooden
pieces fitted snugly together and flush with the ground.  It was located
on the Obolenskys’ property, between three inches and one foot east of the
boundary line.  The Obolenskys put signs on the fence facing the
Trombleys’ property reading: “NO TRESPASSING, POLICE TAKE NOTICE” and “POSTED,
PRIVATE PROPERTY.”  The settlement agreement between the parties allowed
for the erection of such signs at designated locations, but two of the signs
were placed directly next to each other, in violation of the agreement.
¶ 8.            
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.  Mr. Trombley did not believe that the strand
correctly marked the line, and in July 2011 the Trombleys’ surveyor determined
that the Obolenskys had encroached on the Trombleys’ property at their northern
boundary line at five points.  Mr. Trombley ran a straight string along
his northern boundary from the established northwest to the established
northeast corners of the property.  Mr. Trombley contended that the wire
fence placed by the Obolenskys encroached on his land, and the Obolesnkys, in
turn, claimed that Mr. Trombley cut saplings and brush on their side of the
divide.
¶ 9.            
In the meantime, the Obolenskys planted twenty-two evergreen trees on
their property, arrayed from twenty to eighty feet from the Trombley boundary
line.  The trees range in height from twelve to fifteen feet, and are
arranged in roughly three to four rows in a staggered, asymmetric formation.
The trees were planted on the high part of their field, in front of the
Trombleys’ house, obstructing the Trombleys’ mountain view.  The Trombleys
originally objected to the trees, although they later dropped their objection. 
By May or June 2012, some of the trees were dying or showing damage.  The
Obolenskys suspected that Mr. Trombley had poisoned the trees.
¶ 10.        
Finally, because the stockade fence is set back from the boundary line,
there is a small strip of the Obolenskys’ property on the side of the fence
facing the Trombleys’ property.  The Obolenskys do not mow this narrow
strip (and cannot do so without trespassing on the Trombleys’ property), and
the field grass has grown between three-and-one-half to four inches high in the
area.  The overgrown grass sometimes flops onto the Trombleys’ property.[1]  In the summer of 2012, Mr.
Trombley, whose property is otherwise highly groomed, cut the grass.
¶ 11.        
As a result of these activities, 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, and an injunction
ordering its removal.  They also sought damages and injunctive relief for
trespass in connection with the wire fence encroaching on the northern boundary
of their property, and for damages for trespass by Mrs. Obolensky while she was
overseeing the construction of the stockade fence.  For their part, the
Obolenskys filed multiple motions for contempt and an amended complaint seeking
damages for trespass on account of Mr. Trombley’s mowing of the thin strip of
tall grass between the fence and his property, for allegedly cutting vegetation
and leaving debris on their property to the north of the Trombleys’ property,
and for allegedly poisoning their newly planted evergreen trees.
¶ 12.        
The court conducted a site visit, and a hearing was held over multiple
days.  The court found that the stockade fence, as constructed, was a
spite fence, noting that the fence significantly impairs the Trombleys’ ability
to see the mountains and creates “a sense of confinement and isolation” because
it is tall, is made of solid wood, is close to the Trombleys’ home, and stands
flush to the ground.  The court noted that while a fence of identical
appearance and height “might provide welcome privacy in an urban environment,”
in the context of the surrounding open lands and fields it conveys a “feeling
of entrapment” on the Trombley side.  The stockade fence’s placement also
allowed grass to grow along the narrow strip between the fence and the
boundary, causing an “unsightly” effect.  Moreover, because the fence is
“flush with the ground where field grass grows,” the fence and grass together
block water from draining downhill, resulting in water pooling on the
Trombleys’ lawn during wet periods.
¶ 13.        
The court discussed the utility of the fence to the Obolenskys, finding
it to be limited.  The court noted that the fence does block all but the
top of the Trombley house from the Obolenskys’ view, thereby enhancing
privacy.  The court also noted, however, that the evergreen trees planted
by the Obolenskys on their property serve the same purpose, and will do so more
effectively as they grow.  The court acknowledged that the stipulated
order specifically permitted the Obolenskys to erect a fence, that “everyone
knew they planned to do so,” and that “[w]hile the trees they planted provide
screening, they do not serve the function of marking separation of the two
parcels.”  The court found, however, that “the stockade fence as
erected—a six-foot high solid barrier that boxed the Trombleys in and
created an unsightly obstruction”—was both “much higher than necessary for the
purpose of marking the division between the properties” and motivated
predominantly by the Obolenskys’ purpose of annoying the Trombleys.
¶ 14.        
In support of the court’s conclusion that the predominant purpose of the
fence was to annoy, the court considered a number of factors: (1) the history
of hostility between the parties (e.g., the incident in which Mrs. Obolensky
exposed her backside to the Trombleys and her guest urinated on the Trombleys’
property); (2) the fact that the first act of erecting the fence consisted of
noisy weedwhacking at 5:30 a.m. shortly after the stipulation was signed; (3)
the placement of the signs on the fence in violation of the terms of the
parties’ agreement, showing a “deliberate attempt to be provocative”; (4) Mrs.
Obolensky’s visible presence throughout the erection of the fence, including
trespassing on the Trombleys’ property despite the terms of the stipulation
that had just been signed; (5) the fact that the Obolenskys erected the
stockade fence in addition to planting twenty-two evergreen trees, which
provided a screen sufficient to provide  privacy; (6) the placement of the
fence such that neither the Trombleys nor the Obolenskys could maintain the
thin strip of grass without trespassing upon the others’ land, guaranteeing
that the Trombleys would have to look directly at an unsightly thatch of weeds
at the base of the stockade fence; and (7) the characteristics of the fence
itself, including its height, its solid material, the fact that it was flush to
the ground, and its incongruity with the general area.
¶ 15.        
The court ordered the Obolenskys to reduce the height of the stockade
fence to no higher than four-and-one-half feet, leaving at least six inches of
space between the ground and the bottom of the fence.  The court also
ordered the Obolenskys to move their barbed-wire fence on the northern boundary
of the Trombley land so that it did not encroach upon the Trombleys’ property,
and awarded the Trombleys nominal damages of $200 for trespass—$100 for the
encroachment by the barbed-wire fence, and $100 for the trespass by Mrs.
Obolensky during the erection of the fence.  On the basis of the parties’
underlying stipulation and ensuing court order authorizing the award of
attorney’s fees for enforcement of violations of that order, the court also
awarded the Trombleys attorney’s fees in connection with their two successful
claims for trespass, but not with respect to the spite fence.
¶ 16.        
In connection with the Obolenskys’ motions, the court concluded that
they had not proven their claims that the Trombleys poisoned their trees or
trespassed by cutting saplings and depositing debris on their property by the
Trombleys’ northern boundary, but that they had proven that Mr. Trombley
trespassed by cutting high grass on their property between the stockade fence
and the boundary line.  The court determined that the intent to trespass
was not willful under the circumstances, and thus did not rise to the level of
contempt, but awarded the Obolenskys $100 in nominal damages plus attorney’s
fees for that trespass.[2] 
The court’s December 3, 2013 final judgment order awarded the Obolenskys $2,950
and the Trombleys $2,654, so that the Obolenskys were entitled to recover $396
from the Trombleys.
¶ 17.        
The Obolenskys appeal, principally challenging the court’s grant of
injunctive relief requiring them to alter their stockade fence.  The
Obolenskys argue that the court’s determination was erroneous because the fence
enhances their privacy and was not erected for the sole purpose of annoying the
Trombleys; that the court’s factual findings were insufficient; that the
settlement agreement and the fact that the fence does not violate a zoning
ordinance precludes relief; and that the court’s reference to 24 V.S.A.
§ 3801 in connection with its discussion of the fence was
inapposite.  The Obolenskys further argue that the court erred in rejecting
the Obolenskys’ motion for contempt, damages, and injunctive relief based on
the Trombleys’ alleged cutting of vegetation and depositing of debris, that the
trial court’s ruling that the Obolenskys had not proven that the Trombleys
poisoned their trees was based on erroneous findings, and that the court
exhibited regional bias.  We reject each of the Obolenskys’ arguments.
II.  Stockade fence
¶ 18.        
We review the trial court’s decision to grant injunctive relief for
abuse of discretion, and we will not set aside factual findings unless there is
no credible evidence in the record to support them.  Alberino v. Balch,
2008 VT 130, ¶ 7, 185 Vt. 589, 969 A.2d 61 (mem).
¶ 19.        
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.  A person who violates a
provision of this section shall be fined not more than $100.00.
 
¶ 20.        
This “spite-fence” statute was first enacted in 1886 and has remained in
substantially the same form since that time.  P. Gillies, Ruminations:
A Legal Fence, Vt. Bar J., Spring 2008, at 13 (citing Laws of 1886, No.
84)).  We have interpreted this statute only once, in Alberino.
 In that case, the trial court found that a warped eight-foot plywood
fence served no objective purpose other than to annoy a neighbor and was thus a
spite fence that had to be removed.  2008 VT 130, ¶¶ 4-6,
10-14.  On appeal, this Court considered the argument that if the fence
had any useful purpose, it could not be said that the sole
purpose of the fence was to annoy, and thus could not be a spite fence. 
Acknowledging that some courts apply such a “sole-purpose” test, while others
apply a less-arduous “dominant-purpose” test, we did not at that time determine
which standard applies in Vermont.  See id. ¶¶ 9-10.
 Because the evidence in that case supported the conclusion that the sole
purpose of the fence was to annoy the neighbor by obstructing his view, the
fence qualified as a spite fence under either standard.  Id.
A.    Dominant-purpose test versus sole-purpose test
¶ 21.        
This case calls upon us to answer this threshold legal question that we
left unanswered in Alberino: does the spite-fence statute require that
the purpose of annoying the adjoining property owner be the sole purpose
of the fence, or merely the dominant purpose?  We review this
question of statutory interpretation de novo.  Wright v. Bradley,
2006 VT 100, ¶ 6, 180 Vt. 383, 910 A.2d 893.
¶ 22.        
At least eight states have adopted the “dominant-purpose test” for
determining whether the intent element of a spite-fence statute is
satisfied.  Under this test, “the pertinent question is whether the
[defendants’] dominant purpose . . . was to annoy the
plaintiffs.”  Wilson v. Handley, 119 Cal. Rptr. 2d 263, 272 (Cal.
Ct. App. 2002).  If the defendant’s primary purpose in undertaking the
project was to beautify property or protect privacy, then the project is not a
spite fence, but if the defendants undertook the project “primarily to annoy
plaintiffs, and other purposes such as aesthetics and privacy, if any, were
only subordinate to the dominant purpose of annoyance,” then the necessary
intent element is met.  Id.
¶ 23.        
All five other New England states follow the dominant-purpose test.
 Gallagher v. Dodge, 48 Conn. 387, 391-93 (1880) (holding that
fence may be spite fence within statute’s meaning only if “malicious intent” is
“the leading feature of the act”); Lord v. Langdon, 39 A. 552, 552 (Me.
1898) (“To entitle the plaintiff to recover, it must be shown that malevolence
was the dominant motive, and without which the fence would not have been built
or maintained.”), reaffirmed in Peters v. O’Leary, 2011 ME 106,
¶¶ 16-17, 30 A.3d 825; Rideout v. Knox, 19 N.E. 390, 392 (Mass.
1889) (“[W]e are of opinion that it is not enough to satisfy the words of the
act that malevolence was one of the motives, but that malevolence must be the
dominant motive,—a motive without which the fence would not have been built or
maintained.”); Hunt v. Coggin, 20 A. 250, 250 (N.H. 1890) (upholding
jury instruction “that the defendant was liable if he was actuated by two
motives, one of annoyance, and the other of utility, if the former was the
controlling one”); Dowdell v. Bloomquist, 847 A.2d 827, 831 (R.I. 2004)
(“In an egregious case such as this, where evidence of malicious intent plainly
outweighs the discounted benefit claimed by defendant, the court correctly
found defendant’s actions to violate the spite fence statute.”).[3]
¶ 24.        
At least nine states, by contrast, have adopted the “sole-purpose test,”
holding that a structure violates the spite-fence statute or constitutes a
private nuisance only where it was built solely for the purpose of
annoying or inconveniencing neighbors.  For example, in Sundowner, Inc.
v. King, the Supreme Court of Idaho held that its spite-fence rule “is
applicable only to structures which serve no useful purpose and are erected for
the sole purpose of injuring adjoining property owners.”  509 P.2d 785,
787 (Idaho 1973); see also Fontainebleau Hotel Corp. v. Forty-Five
Twenty-Five, Inc., 114 So. 2d 357, 359 (Fla. Dist. Ct. App. 1959) (“[W]here
a structure serves a useful and beneficial purpose, it does not give rise to a
cause of action . . . regardless of the fact that the structure may
have been erected partly for spite.”), reaffirmed in Mickel v. Norton,
69 So. 3d 1081, 1083 (Fla. Dist. Ct. App. 2011); Haugen v. Kottas, 2001
MT 274, ¶¶ 13-14, 37 P.3d 672 (adopting Sundowner rule); Welsh
v. Todd, 133 S.E.2d 171, 173 (N.C. 1963) (holding that “[a] spite fence is
one which is of no beneficial use to the owner and which is erected and
maintained solely for the purpose of annoying a neighbor” and that there is no
actionable claim if fence “does in fact serve any purpose beneficial to the
defendants in the legitimate use and enjoyment of their property” or if
“defendants erected it in good faith reasonably believing that it would perform
a useful function”); Racich v. Mastrovich, 273 N.W. 660, 663 (S.D. 1937)
(holding that fence may be enjoined only if it provides no “benefit or
pleasure” to builder and is built “solely with the malicious motive of injuring
the plaintiff by shutting out his light, air, or view).[4]
¶ 25.        
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.
B.  Factual findings
 
¶ 26.        
The Obolenskys challenge a number of the factual findings underlying the
trial court’s decision.  They argue that the court should not have
credited Mr. Trombley’s testimony that Mrs. Obolensky had referred to the
Trombleys as “peasants,” that the stockade fence frequently caused water to
pool on the Trombleys’ property, concerning the incident in which Mrs. Obolensky
exposed her backside, or concerning Mrs. Obolensky’s trespass onto the
Trombleys’ property during the fence construction.  They argue that this
testimony was unsubstantiated or did not make sense, and that the court should
have found Mr. Trombley’s testimony incredible because he contradicted himself
on the question of whether he had questioned Mrs. Obolensky’s citizenship
status.
¶ 27.        
To the extent that the Obolenskys challenge the trial court’s decision
to credit Mr. Trombley’s testimony, we emphasize that it is the province of the
trial court “to determine the credibility of the witnesses and weigh the
persuasiveness of the evidence.”  Adams v. Adams, 2005 VT 4,
¶ 10, 177 Vt. 448, 869 A.2d 124.  “We will
not disturb the
trial court’s findings of fact unless they are
clearly erroneous, despite inconsistencies or
substantial evidence to the contrary.”  First Congregational Church of
Enosburg v. Manley, 2008 VT 9, ¶ 7, 183 Vt. 574, 946 A.2d 830 (mem.); Highgate
Assocs. v. Merryfield, 157 Vt. 313, 315, 597 A.2d 1280, 1281 (1991) (“A
[factual] finding will not be disturbed merely because it is contradicted by
substantial evidence; rather, an appellant must show there is no credible
evidence to support the finding.”).  Moreover, while the Obolenskys complain
that much of the findings were based solely on the Trombleys’ testimony, it is
well-established that a trial court’s findings may be based on the testimony of
a single witness.  We find no error in the trial court’s decision to
credit Mr. Trombley’s testimony.
¶ 28.        
The Obolenskys argue more broadly that the trial court erred in finding
that the Obolenskys’ dominant purpose in erecting the fence was to annoy the
Trombleys.  The Obolenskys assert that the court’s interpretation of the
series of events misapprehended the true nature of their conduct and that “the
trial court imputes vindictiveness to actions that have a more plausible
innocent explanation.”  The Obolenskys argue that the height of the fence
provides the privacy to which they and their guests are legitimately entitled,
especially in light of the Trombleys’ alleged spying on the Obolenskys.
¶ 29.        
With respect to the Obolenskys’ challenge to the trial court’s broader
finding that they put up the fence primarily to annoy the Trombleys, we are
similarly deferential to the trial court’s assessment.  The questions of
whether a fence is unnecessary, and whether a fence was erected “for the
purpose of annoying the owners of adjoining property by obstructing their view
or depriving them of light or air,” 24 V.S.A. § 3817, are “factual
determination[s] to be made by the trial court in the first instance based on
the evidence received at trial.”  Wilson, 119 Cal. Rptr. 2d at
272.  The question of whether the fence in this case was a spite fence as
defined by statute is a mixed question of law and fact, and we will uphold the
trial court’s conclusion “if the court applied the correct legal standard and
its conclusions are supported by its factual findings.”  Adams,
2005 VT 4, ¶ 10.
¶ 30.        
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).
¶ 31.        
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.
¶ 32.        
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.
C.  Effect of settlement agreement, compliance with
zoning ordinance, and 24 V.S.A. § 3801
 
¶ 33.        
The Obelenskys make several other arguments concerning the stockade
fence that warrant discussion.  First, they argue that the stipulated
court order undermines the trial court’s conclusion that this is a spite
fence.  The parties’ settlement agreement provides that the parties
“shall each be entitled to erect and maintain any fence allowed by law.” 
They further argue that the fence that they built did not require a town
permit, and was thus allowed by law and expressly permitted by the settlement
agreement, undermining the finding that the fence was a spite fence.
¶ 34.        
We disagree.  The erection of “unnecessary” structures “for the
purpose of annoying the owners of adjoining property by obstructing their view
or depriving them of light or air” is expressly disallowed by the spite-fence
statute.  24 V.S.A. § 3817.  A fence that falls within this
category is thus not “allowed by law” as the agreement recites.  Although
the parties clearly contemplated the possibility of a fence, their agreement
did not specify the dimensions, characteristics, or location of any fence, and
cannot be construed as an agreement to any fence of any character and dimension
at any location, essentially waiving the protections of § 3817.  The
trial court did not rule that any fence would violate the spite-fence
statute; it ruled that the fence here was a spite fence as erected.[5]
¶ 35.        
Nor does the fact that the fence did not require a town permit undermine
this conclusion.  The fact that a structure complies with zoning or
permitting ordinances does not preclude a finding that the structure violates a
spite-fence statute.  Gertz v. Estes, 879 N.E.2d 617, 619 (Ind. Ct.
App. 2008) (holding that grant of municipal permit for fence did not preclude
finding that fence violated spite-fence statute, since local ordinances are
subordinate to state law and since statute made no “reference to conformity
with local ordinances,” showing legislative aim “to address the intent of the
builder, irrespective of other government regulation”; see also Roy v.
Woodstock Cmty. Trust, Inc., 2013 VT 100A, ¶ 73, ___ Vt. ___, 94 A.3d
530 (“[E]ven a lawfully permitted project may be a nuisance based on its
conditions or manner of operation” (quotation omitted)); Trickett v. Ochs,
2003 VT 91, ¶ 15, 176 Vt. 89, 838 A.2d 66 (stating that “[c]ompliance with
the zoning ordinance is of little consequence to the main nuisance issue”).
¶ 36.        
The Obolenskys also argue that the trial court “inappropriately applied”
24 V.S.A. § 3801, a statute relating to fences sufficient to contain
livestock.  In its discussion of the fence in this case, the trial court
made the following statement:
In
determining a reasonable height, it is helpful to refer to Vermont statutory
law relating to boundary fences, which establishes a fence of four and one-half
feet in height as being a “sufficient” fence.  24 V.S.A.
§ 3801.  This would be a reasonable height that would accomplish the
Obolenskys’ legitimate purpose [of marking the division between the properties]
and would abate the effect of the unnecessary and spiteful height.
 
The
court noted that the statute makes reference to the enclosure of animals, but
concluded that the statute does not limit the definition of a “sufficient”
fence to such a purpose.
¶ 37.        
The Obolenskys argue that the trial court improperly subjected them to a
law directed at livestock owners, which we have held unconstitutional as
applied to landowners without livestock.  Choquette, 153 Vt. at
54-55, 569 A.2d at 460.  We disagree.  The trial court did not apply
the statute or require the Obolenskys to build a partition fence.  It
merely used the statute as a reference point for determining a “reasonable
height” for a fence serving the legitimate purpose of marking the
boundary.  It was not improper for the court to consider § 3801,
together with all other relevant factors, in determining the height of a
reasonable fence under the circumstances.
III.
 Other claims
¶ 38.        
The record also amply supports the court’s determination that the
Obolenskys failed to prove, by a preponderance of the evidence, that the
Trombleys poisoned their trees.  The Obolenskys believed that Mr. Trombley
had access to road salt because he worked for the state highway department.
 The Trombleys adamantly denied poisoning the trees.  The Obolenskys
contacted three arborists, two of whom testified at trial.  One arborist
testified that trees purchased at nurseries and planted by contractors are
often planted too deeply, and that this was the likely cause of the trees’
problems.  The second arborist testified that he had visited the property,
took soil samples around the dying trees, and had them tested in a lab. 
The results showed no evidence of poisoning.  The only evidence of
poisoning presented at trial was from a test of a soil sample collected by Mrs.
Obolensky herself and sent to a University of Vermont lab for testing. 
This sample showed salt concentration high enough to interfere with plant
growth by drawing water away from the roots.  The second arborist
testified at trial that the test results from this sample supported the
conclusion that the likely cause of death was the application of salt, but
emphasized that that conclusion was based on the test results of a sample which
he did not collect.  Given the conflicting testimony concerning the likely
cause of the trees’ disease, we find there was no error in the trial court’s
determination that the Obolenskys failed to prove that the Trombleys had
poisoned their trees.
¶ 39.        
The Obolenskys also claim that the trial court exhibited regional bias
against them, noting that the court referred in its written decision to the
Obolenskys as New Yorkers who split their time between their Vermont home and
New York, and to the Trombleys’ longtime employment in Vermont.  The
Obolenskys suggest that the court set up a “contrast” between “the Obolenskys
as New Yorkers” and “the Trombleys as upstanding Vermont citizens.”  Aab
17  “We agree that appeals to regional bias are inconsistent with
notions of impartial justice,” Brown v. Roadway Express, Inc., 169 Vt.
633, 635, 740 A.2d 352, 356 (1999) (mem.), and “take very seriously claims of
regional . . . bias in our judicial system,” B & F Land Dev.,
LLC v. Steinfeld, 2008 VT 109, ¶ 6, 184 Vt. 624, 966 A.2d 127 (mem.),
but we cannot find that the simple recitation of basic background facts on
where the parties live or where they are employed, without more, showed any
bias on the court’s part.  The fact that this was a bench trial, rather
than a jury trial, diminishes concerns about regional biases.  Compare Caperton
v. A.T. Massey Coal Co., 556 U.S. 868, 891 (2009) (“All judges take an oath
to uphold the Constitution and apply the law impartially, and we trust that
they will live up to this promise.”) with J. Stein, Stein Closing Arguments
§ 1:26 (2014-15 ed.) (noting that concerns about bias against out-of-state
residents are heightened in jury trials, where counsel’s advocacy might
engender prejudice).
¶ 40.        
Finally, we reject the Obolenskys’ argument that the trial court erred
in declining to find Mr. Trombley in contempt for mowing the narrow strip of
grass between the Obolenskys’ fence and the boundary line.  The court
found that the high grass had grown on this three-inch-to-one-foot strip as “a
natural consequence of the untenable situation created by the Obolenskys” in
building a solid fence flush to the ground in a place where neither party could
maintain the area without crossing onto the other’s property.  The grass
thus grew to unsightly lengths and “flopped” onto the Trombleys’ land.
 The court concluded that Mr. Trombley was entitled to cut the grass to
the extent that the grass had encroached on his lot, citing Cobb v. Western
Union Telegraph Co., 90 Vt. 342, 344, 98 A. 758, 759 (1916) (“[W]here a
tree stands wholly on the ground of one and so is his tree, any part of it
which overhangs the land of an adjoining owner may be cut off by the latter at
the division line.”).  The court also noted that since even
non-encroaching grass would inevitably grow to the point where it would flop
onto the Trombleys’ land, “it was not unreasonable for the Trombleys to make a
preventive cut to prevent such encroachment,” instead of being forced to “trim
tiny amounts of encroaching growth on an ongoing basis throughout the growing
season.”
¶ 41.        
Because the court found that the Mr. Trombley had knowingly cut the high
grass on the Obolenskys’ property, the court found that Mr. Trombley had
trespassed.  It awarded the Obolenskys nominal damages of $100, as well as
attorney’s fees associated with that claim.  But the court declined to
hold Mr. Trombley in contempt of the stipulated order, concluding that “while
the act of cutting was willful, the facts do not show a willful intent to
violate the terms of the stipulated order.”  The court found that the
Trombleys took reasonable measures to prevent encroachment that was bound to
occur by the natural and predictable growth of grass, and that the Obolenskys
created the untenable situation in the first place.  As noted above, the
court also included in its injunction a provision mandating at a least a
half-foot gap between the ground and the bottom of the fence.  This
provision was aimed at preventing this problem from recurring.
¶ 42.        
“[A] civil contempt is one which operates mainly to deprive another
party to a suit of some right, benefit, or remedy to which he is entitled under
an order of the court.”  In re C.W., 169 Vt. 512, 517-18, 739 A.2d
1236, 1240 (1999).  Contempt is generally a tool used where a party’s
violation is willful, and coercive measures are necessary to ensure
compliance.  Spabile v. Hunt, 134 Vt. 332, 334-35, 360 A.2d 51, 52 (1976)
(stating that contempt power is “utilized against only that person who, being
able to comply, contumaciously disobeys, or refuses to abide by, the court
order” (quotation omitted)).  “The power of contempt is, in the main,
discretionary.”  Orr v. Orr, 122 Vt. 470, 474, 177 A.2d 233, 236
(1962); accord Spabile, 134 Vt. at 334, 360 A.2d at 52 (“The power to
punish for contempt is necessarily discretionary in nature.”).  A decision
to hold or not hold a party in contempt is reviewed for abuse of discretion. 
“So long as a reasonable basis for the discretionary action of the trial court
is shown to be present, this Court will not interfere.”  Brooks v.
Brooks, 131 Vt. 86, 93, 300 A.2d 531, 535 (1973) (quotation marks omitted).
¶ 43.        
Here, the trial court did not abuse its discretion in declining to hold
the Trombleys in contempt.  The Trombleys’ violation of the stipulated
order resulted in only nominal damages, and the court found that the violation
was a “natural consequence of the untenable situation created by the
Obolenskys.”  Moreover, the Trombleys had a legal right to cut the
overhanging grass, although not the non-overhanging grass.[6]  Further, the Obolenskys, who were
seeking contempt for violation of a stipulated order, had themselves violated
it.  Under these circumstances, we cannot find that the trial court
“failed to exercise its discretion, or that its discretion was exercised on
reasons clearly untenable, or to an extent clearly unreasonable.”  Id.
at 92, 300 A.2d at 535.[7]
Affirmed.



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 
 







[1]
 This narrow space is reminiscent of the historical problem of “devil’s
lanes,” the “unoccupied spaces between separate fences constructed by hostile
neighbors.” Choquette v. Perrault, 153 Vt. 45, 49, 569 A.2d 455, 457
(1989).


[2]
 The Trombleys have not cross-appealed this determination. 


[3]  See also Hay v. Stevens, 530
P.2d 37, 39-40 (Or. 1975) (holding that if fence “unreasonably interferes with
plaintiffs’ use and enjoyment of their land” and fails balancing test of utility
versus harm, it may be enjoinable nuisance notwithstanding fact that some
utility exists); Karasek v. Peier, 61 P. 33, 36 (Wash. 1900) (“[I]t was not the intention [of the legislature in enacting
spite-fence statute] to prohibit the erection of such structures as really
enhance the value, usefulness, or enjoyment of land, but such only as are primarily
or solely intended to injure or annoy an adjoining owner, and which serve
no really useful and reasonable purpose” (emphasis added)).


[4]
 See also Daniel v. Birmingham Dental Mfg. Co., 93 So. 652, 654
(Ala. 1922) (stating that for spite fence to be abatable nuisance, “it should
be distinctly alleged, not only that the structure complained of is entirely useless
to the respondent, and without value to his property, but also that it was
maliciously erected for the purpose of injuring complainant in the use and
enjoyment of his property,” with “no foundation for any inference of utility or
advantage, real or fancied” to defendant); Campbell v. Hammock, 90
S.E.2d 415, 416 (Ga. 1955) (stating that billboard erected on one’s “own land,
which is not otherwise a nuisance, does not become one merely because it is
erected maliciously or from spite or ill will, where it serves a useful
purpose,” and that structure is enjoinable nuisance only when erected
“maliciously for the sole purpose of injuring another”); Green v. Schick,
153 P.2d 821, 821-22 (Okla. 1944) (holding that where fence was built partially
because of spite and partially because it was useful, it was not nuisance).


[5]
 For the same reason, we reject the argument that the fence cannot be a
spite fence because the agreement signed by Mrs. Obolensky in the diversion program
in connection with the criminal complaint calls for her to construct a fence.


[6]
 The trial court’s order did not, as suggested by the Obolenskys, give the
Trombleys permission to trespass on the Obolenskys’ property
indefinitely.  The court found that the Trombleys had trespassed, imposed
nominal damages for the trespass, awarded the Obolenskys attorney’s fees, and
issued an injunction designed to prevent the problem from recurring.
 


[7]
 The Obolenskys also complain that the trial court failed to rule on the
Trombleys’ motion to remove the trees, and suggest that the failure to rule on
the motion “leave[s] the Obolenskys open to the risk of further litigation by
the Trombleys.”  We disagree.  The court’s September 26, 2013
decision indicates that the Trombleys dropped their objection to the planting
of the trees, rendering the issue moot. Moreover, the court clearly approved of
the addition of the trees on the Obolenskys’ own property, and indeed partially
based its finding that the Obolenskys’ stockade fence is an unlawful “spite
fence” on the fact that the trees serve a privacy function rendering a tall
fence unnecessary or redundant.



