Croner, H. v. Popovich, S.
Croner, H. v. Popovich, S. No. 1595 WDA 2016
| Pa. Super. Ct. | Aug 1, 2017Background
- Adjoining rural farms in Somerset County: Croner family historically grazed cattle; Popoviches owned neighboring farm but currently do not keep livestock.
- A long-standing division fence between properties fell into disrepair; Croners sought a fence viewer in 1991 after cattle began straying.
- A registered engineer (fence viewer) found the fence insufficient; Popoviches later rebuilt much of the fence in 1992 to keep cattle out.
- In 2014 the fence was cut in multiple places, allowing cattle to stray again; Croners moved to compel repair/replacement and one-half cost contribution under the Fence Law, 29 P.S. § 41.
- Trial court appointed a fence viewer, authorized Croners to repair/replace per the viewer’s certificate, and ordered Popoviches to pay one-half the cost less a credit for prior repairs; it denied Croners’ request to force Popoviches to remove and rebuild the existing fence on the certificate line at Popoviches’ expense.
- On appeal the sole issue is whether owners who do not keep livestock must share in fence erection/maintenance costs under the Fence Law when the adjoining owner does keep livestock.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 29 P.S. § 41 requires a non-livestock-owning adjoining landowner (Popovich) to pay half the cost to erect/maintain a division fence when the neighbor keeps livestock | Croners: Fence Law applies because properties are rural farms/ranches and fence exists to contain livestock; statute imposes cost-sharing regardless of current ownership of livestock | Popoviches: Fogle controls — statute does not require landowners who do not keep livestock to share fence costs; imposing cost is unreasonable/absurd | Court affirmed trial court: Fence Law applies here (farm context and history of livestock); Popoviches must pay one-half of repair/replacement costs (with credit) despite not currently keeping livestock |
Key Cases Cited
- Fogle v. Malvern Courts, Inc., 701 A.2d 265 (Pa. Super. 1997) (reviewed scope of Fence Law and held statute inapplicable to residential properties lacking livestock)
- Fogle v. Malvern Courts, Inc., 722 A.2d 680 (Pa. 1999) (affirming Superior Court; Fence Law addresses farms/ranches and is intended to contain livestock)
- Recreation Land Corp. v. Hartzfeld, 947 A.2d 771 (Pa. Super. 2008) (standard of review for non-jury trials; defer to trial court factfinding)