*1 Holly Corporation Hill Farm

Dorothy M. Rowe, et al.

Record No. 901208

April Present: Justices All the *2 Brooke; A. Canfield; A. Somerville L. Robert George (Robert Valentine; Mays Canfield, briefs), & Moore & Shapiro, appellant. Stehl, III,

Edward on brief for appellees. JUSTICE COMPTON Court. opinion delivered the

The question we confront in this declaratory judgment proceed- ing is whether the trial court erred in of Vir- declaring a portion *3 ginia’s legislation, division fence law special unconstitutional as to applied a particular group of landowners. we will review law

Initially, of the development relating law, to division fences. At common every landowner’s boundary fence, line was a lawful and when cattle another’s trespassed upon land the cattle owner was liable in and damages. Pleading Burks Practice (4th 1952). 398 at 778 ed. § here,

In with Virginia, certain not exceptions pertinent common-law is not in rule force. Landowners their protect must crops against trespassing by cattle a Livestock erecting land, are not to required enclose their and are generally not liable for damage caused unless by trespassing their animals they go land enclosed assigned a lawful fence. The by reason for of this adoption so-called “fence out” is that legislation common-law “was rule conditions nature and adapted settlement; at the time of materials country fencing its scarce; were that there was occupied a vast extent of land not cultivated, valuable public for and that the in chiefly pasturage; terests would best subserved each landowner to requiring by protect his by Id. crops proper Assembly enclosures.” The General enacted “fence out” as “EVERY man early as 1631: shall ground enclose his with sufficient fences theire owne uppon Stat., 1 perill.” Hen. (1631-32) Act LXIII at 176 1887, fence enacted division Assembly the General a to who desired con and a means a landowner provided whereby adjoining a fence his and that of an land struct between “just the latter proportion” owner could to bear compel and the fence. See Code expense building maintaining to a landowner to permitted -2059. The law also §§ erecting rata cost of a division fence payment pro by avoid to allow the land to “lie and remain unenclosed. choosing open” 2053. Id. at § -322, Code

The division fence now 55-317 has §§ amended since 1887. This arises years controversy been over enacted in 1970. Acts ch. Cur from an amendment italicized: 55-317 with the 1970 amendment rently, provides, § maintain, at their “Adjoining landowners shall build and lands, division fences between joint equal expense, his shall to let land lie open unless one of them choose for, agree shall hereinafter or unless otherwise provided No land used industrial or between themselves. owner of for ad- parcels, commercial subdivided into lots or purposes, no- agricultural purposes, given lands used joining lands 55-318 tice owner such under adjoining § let his lie but open, shall have the choosing or be shall build such liable therefor. one-half of fence for the of such fences “Proceedings repair erection be as in the sections.” following shall set forth to be used to force an Section establishes the procedure his half” of a adjoining “to come forward build landowner division fence. Holly Corpora- Hill Farm

The facts are undisputed. Appellant In Septem- farm in Caroline large County. tion cattle operates *4 in the court be- ber Hill filed several actions Holly separate Gravatt, Rowe, Rowe against Dorothy Dorothy low M. appellees Proctor, Proctor, C. Frances B. Lillie Rowe Frank Mary Taylor, actions, In (the Neighbors). Holly and Frances R. Lambert those ad- alleged Neighbors Hill that the lived subdivided Farm, Hill and intended and desired joining Holly Holly Hill that land of the land the to build a division fence between its and fence law. Holly the of the division Neighbors, invoking provisions in the construction Hill asked the to Neighbors participate fence to cost of pay erecting Asserting and half the the Neighbors that the had refused to contribute or in the participate construction, Hill an sought Neighbor award from each Holly erecting half the cost of the the and division fence between Farm the the Neighbor’s Neighbors particular property. Responding, any denied indebtedness to Hill stated desired Holly to lie open. In December the initiated Hill by while actions Holly were pending, Neighbors the filed the present declaratory judg- asking ment the to proceeding court declare “unconsti- § as tutional an applied them.” after Subsequently, April the hearing, trial court issued a letter declaring “that opinion opt-out of the division fence as provision applied lots, subdivided is legislation, and is therefore special unconstitutional.” order,

In the June 1990 from which we awarded Hill Holly trial appeal, granted sought court the relief the Neighbors, by and declared 55-317 and -318 as In unconstitutional applied. §§ addition, the court ordered its clerk from trial to remove docket the actions instituted by against Neighbors. Hill Holly

On Hill appeal, Holly contends that the trial court erred in de- claring the subject enactments applied unconstitutional as Neighbors. Particularly, argues Hill court Holly that trial erred determining 55-317, that the second sentence of which § owners, denies “opt-out” three privileges to constitutes types legislation; unreasonable, special arbitrary, oppressive; violates the applicable provisions the Constitution Virginia. We agree with Holly Hill.

The Constitution provides, pertinent, that “General local, shall not enact . . . Assembly or law any private special, [g] association, ranting to any private or corporation, individual Const, any or special right, exclusive or Va. privilege, immunity.” IV, addition, 14(18). art. Constitution also provides § in all cases enumerated in “and foregoing every section which, other case in its judgment, general bemay provided Const, laws, the General general shall enact Va. Assembly laws.” IV, Also, art. Constitution “Any general provides: § shall be subject to or amendment but the amendment repeal, partial repeal en thereof shall not operate directly indirectly to act, and shall of, not have the pri effect of enactment special, vate, Further, or local law.” Id. “No the Constitution provides:

430 association, ex- or individual shall be specially corporation, private shall a general nor any general of operation from the empted any private corpo- for the benefit of be suspended law’s operation association, ration, Id. or individual.” construction statutory apply

Settled principles is “special legislation.” whether a law always perplexing question to be constitu is presumed of the General Assembly act Every anof constitutionality doubt regarding reasonable Any tional. And, the validity. law’s resolved in favor of the enactment must be whether the en with the question should not be concerned courts has the legislature plenary or because proper actment is wise or constitution limits pro federal or state where the power, except and void a statute null courts will declare hibits that The power. provision. to some constitutional where it is only plainly repugnant 77, 603, 611, Commonwealth, S.E. 126 Va. 102 v. Martin’s Ex’rs invalidate laws Nevertheless, not hesitated to “we have (1920). 79 consideration, found, prohibition to violate careful Sciortino, Co. v. Benderson Development laws.” against special 751, 136, 148, (1988). 757 372 S.E.2d 236 Va. laws in the Constitution against special

The proscriptions favoritism, and have aimed at economic Virginia “are squarely 146, The 372 S.E.2d at 756. Id. at been so since their inception.” first in the adopted of the constitutional prohibitions, purpose Gen- 1902, that the to correct the perception Constitution of “was an excessive devoted century, in the nineteenth eral Assembly, Id. at interests.” of private of its time to the furtherance amount 147, at 756. 372 S.E.2d is the exis of prohibited special

The essence things places, arbitrary separation persons, tence of an will, class, of them that some with the result general same 610, Martin, not, 126 Va. at law. some will be affected Nonetheless, against special prohibitions constitutional S.E. at 79. import “All classifications laws do not classification. proscribe discrimination, required is not the legislature some but degree ” Haddon, 202 Va. v. Mandell nicety.’ to achieve ‘mathematical classification, how 979, 991, 516, S.E.2d reasonable, to the oc ever, and appropriate “must be natural and legis Routinely, Martin, 102 S.E. at 126 Va. at casion.” places, of persons, classifications lation pertains specific provided “general,” is nonetheless Such an enactment property. to all reasonable, applies arbitrary, the classification who are situated well to all persons similarly as parts State where like conditions exist. Id. at 102 S.E. at 82. necessity “the for and the reasonableness of Importantly, primarily legislature. classification are If questions any conceived, it, state of facts be reasonably can that would sustain state facts at the time the law was enacted must as *6 612-13, sumed.” Id. at 102 at Etheridge S.E. 80. Accord v. Medi 87, 102, 525, cal Center 237 533 Hospitals, Va. 376 S.E.2d And (1989). the burden is the of the to assailant upon basis, establish that does not it rest a reasonable and is es upon Martin, 126 at sentially arbitrary. Va. at 102 S.E.

Against this we turn to background, the under scrutiny. amendment, Court, Prior to the 1970 rejecting when consti- laws, tutional attack Virginia’s fence said: “We entertain no doubt of the of the laws validity under benefit, consideration. were They intended for the mutual convenience and welfare of all the of the citizens Common- wealth. . . Legislature . The has power the to the regulate relative rights the responsibilities of en- proprietors land, closed and the owners stock that is allowed to run at can, therefore, large, take man from his every remedy cattle, for a unless his trespass by he enclose lands with fence, lawful violating right without any guaranteed by the State, Constitution of the or the United States.” Poindexter 143, 149-50, v. May, 98 Va. 34 S.E. 973 contend, however, The Neighbors found, and the trial that court the 1970 amendment leaves them no option regarding contribu- tions to a division fence by adjoining agricultural erected an land- contrast, owner, but, in an adjoining agricultural landowner has such an when to the owner of subdivided seeks fence; thus, build a are legis- the victims an unreasonable lative classification. We disagree.

Guided by foregoing we cannot controlling principles, say that 55-317 generally, and the 1970 amendment particu § is larly, plainly repugnant constitutional proscriptions against special legislation. say legisla While some that may unwise, tion is for improper, inequitable, these conclusions are reach, legislators to guise and not for to assert in the judges judicial view, interpretation. our have failed to Neighbors does burden to that enactment not heavy establish

carry basis, essentially arbitrary. a reasonable and is rest be, classification, it not discriminatory though may because it favors owners of arbitrary simply unreasonable industrial, commer agricultural over purposes used cial, question, “opt-out” or subdivided Without property. pro situated and similarly vision to all who are applies persons applies like So all of the Commonwealth where conditions exist. parts “general.” that extent the are provisions But, invalid “special” does not treatment amount to unequal treatment, justification is the for the General Assem- what said, the 1970 amendment? As we have bly’s enacting action reasonably of facts can be conceived would any state such state of must be assumed court by facts support enactment, may have the time of the and the law existed at arbitrary. declared court to be unreasonable or by unlike the We that the General perceive Assembly, General was faced with continued urbanization Assembly, land use Commonwealth evidenced resi- proliferation centers, subdivisions, dential commercial and industrial shopping *7 The also was confronted with the division complexes. legislature industrial, commercial, fence law which owners of and permitted whose agricultural lands abut al- property property subdivided being low their land to lie without fenced. With collision open benefit, rural and the mutual Virginia, of interests between urban convenience, citizens de- and welfare of all the Commonwealth’s livestock manded that conditions such as the of roam- probability neighborhoods, commercial cen- ing through shopping residential streets, ters, industrial and associated be avoided. parks, Thus, in a the General 1970 made decision Assembly owners to the deci economically agricultural favorable to similar grower, made in favorable to the crop sion 1887 economically were division fence law en cost-sharing of the provisions Poindexter, legislature and later de supra. acted approved control agricultural primary cided that owners should have over the a erecting establishment of division fences and that cost commercial, and indus agricultural division fence between trial, shared and not be and subdivided land should be equally, time, owner. At the same solely by agricultural borne land, in much in area than most cases smaller owner non-farm land, forcing was denied the adjacent agricultural adjacent farm owner to cost of division share the fence pro- is, posed by the lot owner. A decision otherwise —that allow lot owner the farm share the to force owner to cost of the lot owner’s individual division fence —could result in a mixture of adjoining fenced unfenced lots farm land. The continuity fencing farm land the whim adjoining solely would on depend circumstances, individual lot owners. Under those one lot owner who refused to subdivision fence could of a destroy integrity division fence desired lot owners and would cre- remaining ate the conditions that the General very Assembly sought to avoid. Thus, we legislative do not find that the decision to treat the clas- unreasonable, ses of was differently inappropri- ate, or arbitrary. we conclude

Consequently, that the trial court erred in declar- ing the statutes in question special legislation unconstitutional Therefore, applied Neighbors. we will reverse the judgment below, direct the trial court to reinstate on its trial docket the prior Hill, actions brought by Holly judgment enter final here in this case.

Reversed and judgment. final LACY, JUSTICE with whom CHIEF JUSTICE CARRICO joins, dissenting.

The majority sustains the laws involved portion fencing that, enactment, here the rationale at the time Common- wealth was faced with a “collision of interests between rural and convenience, Virginia, benefit, urban the mutual [and that] welfare of all the Commonwealth’s citizens demanded that condi- tions such as the probability of livestock residen- roaming through tial neighborhoods, centers, commercial parks, industrial shopping streets, reasons, and associated legisla- avoided.” For these ture decided “the cost of erecting a division agricul- fence between *8 commercial, industrial, tural land and and subdivided land should be shared equally, and not be agricultural borne solely by owner.” these

Serving mutual is interests laudable and a supports provi- sion requiring co-financing of adjacent fences built between amendment, properties. however, The 1970 does serve all in- Rather, terests equally. the provision sharing cost requires only owner, interests, of his own pursuit when the agricultural fence, commercial, neighboring indus- to erect a but leaves wishes trial, re- rely own financial or subdivision landowners is that division fence necessary pro- sources if determine a tect their interests. fencing “continuity adjoin- a need for of identifies majority favoring treatment

ing justification unequal farm land” as the agricul- This assumes that agricultural landowners. rationale tract, that land- larger abutting all always tural tract will be agricul- and that the categories, will be in the restricted will to install always party seeking landowner be the tural fact, can agricultural owner present under the cost, building escape half of the pay either build the fence and adja- his “lie choosing open” to let land expenses entirely by is properties fence between the cent landowners determine sus- fencing” an insufficient rationale to “Continuity needed. of is such rights. tain disparate land, as as owners of agricultural owners of well

Requiring the commercial, industrial, to contribute to or subdivided land fence, fence, would of who regardless erection requests fencing” “continuity goals. serve the “collision of interests” and However, contained amend- approach the one-sided agricul- does more “favor” fencing simply ments to laws than landowners; which bears it economic favoritism tural constitutes sought. objective no relationship reasonable or substantial Sciortino, 146, 372 Co. 236 Va. Development Benderson v. such, legis- As it unjustified special S.E.2d I trial judgment. lation. would affirm the court CARRICO, dissenting. CHIEF JUSTICE I that a fence- Justice in dissent. I believe as she does join Lacy to one if it an legislation grants option constitutes special for no better reason landowner denies the to another option but add than to But I feel constrained continuity fencing. insure constitutionally may I think review under infirm in respect. another commercial, industrial,

In addition to an owner denying his lie open, to let land choosing subdivided land the “shall 1970 amendment the owner such provides that (Empha- or be liable therefor.” build one-half of fence [a division] *9 sis added.) provision This appears targeted to make an owner land conclusively liable to build or to for building one-half of pay a division If this be the effect of the it is legislation, woe- fully lacking in due I process protection. realize lack due pro- statute, cess is not basis of present attack but I would not want the Court’s silence on the subject to taken as indicating that law passes constitutional muster in this respect.