Obolensky v. Trombley
115 A.3d 1016
Vt.2015Background
- Neighbors in Brandon, VT: Michael and Jirina Obolensky (40-acre property with B&B) and Robert and Sandra Trombley (3.7-acre lot uphill with mountain view).
- Parties entered a 2011 stipulated order establishing a surveyed boundary and stating each party "shall each be entitled to erect and maintain any fence allowed by law."
- Shortly after the stipulation, Obolenskys installed a 6'1" solid wooden stockade fence on their land set 3–12 inches east of the boundary, with provocative "No Trespassing" signs; they also installed a single-strand barbed wire at the northern boundary and planted 22 evergreens that obstructed the view.
- Trombleys challenged post-judgment acts as a spite fence and trespasses; the court held a site visit and multi-day hearing.
- Trial court found the stockade fence a spite fence (height, solid/flush-to-ground construction, context, history of hostility, and redundancy given the evergreens), ordered the fence reduced to 4.5' with at least a 6" ground gap, required relocation of the barbed wire to avoid encroachment, awarded nominal damages for two trespasses, and allocated some attorney’s fees.
Issues
| Issue | Plaintiff's Argument (Obolensky) | Defendant's Argument (Trombley) | Held |
|---|---|---|---|
| 1. Standard for spite-fence intent | Court must require sole-purpose (entirely to annoy) | Court should apply dominant-purpose (annoyance as primary motive) | Court adopts dominant-purpose test: annoyance must be the leading/dominant motive |
| 2. Whether stockade fence is a spite fence | Fence provides legitimate privacy; permitted by stipulation and zoning | Fence was primarily intended to annoy and unreasonably obstructs Trombleys’ view; inconsistent with surroundings | Trial court’s factual findings supported that dominant purpose was to annoy; fence enjoinable and must be modified |
| 3. Effect of settlement agreement and zoning compliance | Stipulation allowing any lawful fence and lack of permit requirement preclude spite-fence finding | State spite-fence statute overrides broad settlement and permits evaluation of fence character and intent | Stipulation and zoning compliance do not bar application of spite-fence statute; court may enjoin spiteful fences |
| 4. Trespass, contempt, and tree-poisoning claims | Obolenskys: Trombleys trespassed, deposited debris, poisoned trees; seek contempt and damages | Trombleys: acted reasonably to protect property (mowed encroaching grass); deny poisoning | Court rejected poisoning/debris claims (insufficient proof); found nominal trespass for mowing narrow strip but no contempt; awarded nominal damages and fees where appropriate |
Key Cases Cited
- Alberino v. Balch, 185 Vt. 589 (Vt. 2008) (earlier Vermont spite-fence decision discussed standard and facts)
- Gallagher v. Dodge, 48 Conn. 387 (Conn. 1880) (New England precedent applying dominant-purpose test)
- Dowdell v. Bloomquist, 847 A.2d 827 (R.I. 2004) (dominant-purpose analysis where malicious intent outweighed claimed benefit)
- Sundowner, Inc. v. King, 509 P.2d 785 (Idaho 1973) (contrasting sole-purpose test adopted in some jurisdictions)
- Choquette v. Perrault, 153 Vt. 45 (Vt. 1989) (discussion of narrow "devil's lanes" between hostile neighbors)
- Cobb v. Western Union Telegraph Co., 90 Vt. 342 (Vt. 1916) (owner may cut parts of vegetation that encroach across boundary)