Choquette v. Perrault

• Decision Date: 27 October 1989
• Docket Number: No. 86-335,86-335
• Court: Vermont Supreme Court
• Parties: , 87 A.L.R.4th 1119 Ernest and Louise CHOQUETTE v. Robert and Rose PERRAULT.

Page 455

569 A.2d 455

153 Vt. 45, 87 A.L.R.4th 1119

Ernest and Louise CHOQUETTE v. Robert and Rose PERRAULT.

No. 86-335.

Supreme Court of Vermont.

Oct. 27, 1989.

Robert W. Davis, Newport, for plaintiffs-appellees.

Zuccaro, Willis and Bent, St. Johnsbury, for defendants-appellants.

Jeffrey L. Amestoy, Atty. Gen., and William H. Rice, Asst. Atty. Gen., Montpelier, for amicus curiae State of Vermont.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

Defendants appeal from a superior court decision holding them liable to plaintiffs for a share of the cost of a division fence erected by plaintiffs between the parties' properties pursuant to 24 V.S.A. chapter 109 (fence law). We reverse.

I.

In 1970, defendants bought fifty acres of wooded and unoccupied land in Newport and cleared two acres, upon which they built their home. Four years later, plaintiffs bought a 310-acre parcel of land adjoining defendants' property and began pasturing a herd of cattle next to an existing division fence. Despite the fence, which was apparently in a state of disrepair, plaintiffs' livestock repeatedly escaped onto defendants' land.

With defendants' permission, plaintiffs constructed an electric fence on defendants' property in order to prevent the animals from trespassing. When that fence was destroyed, plaintiffs asked defendants to help them reconstruct the division fence and pay a proportionate share thereof. Defendants, who owned no livestock or domestic animals, refused. Plaintiffs then asked the local fence viewers to make a division of the fence pursuant to 24 V.S.A. § 3810, which they did. Once the viewers' decision was duly recorded in the town clerk's office, plaintiffs again asked defendants to build their share of the fence. Upon defendants' refusal to do so, plaintiffs built the 850 feet of fence that the viewers had assigned to defendants, and brought suit to collect the sum expended, as authorized by 24 V.S.A. §§ 3808 and 3816.

The case went to trial in early 1982, with judgment for plaintiffs. Following an appeal to this Court, the matter was remanded so that defendants could pursue the administrative remedy provided under 24 V.S.A. § 3802, which authorizes the selectmen to exempt owners of "unimproved and unoccupied land" from the fencing requirements of chapter 109. ¹ Choquette v. Perrault, 144 Vt. 218, 475 A.2d 1078 (1984). Defendants' application for exemption was denied, and the matter was heard again in the superior court on the record of the first trial. Plaintiffs again prevailed, and it is that judgment which defendants now appeal on the ground that the Vermont fence law unconstitutionally exceeds the permissible police power of the state. Defendants rest their claim of unconstitutionality on Articles 7 and 9 of Chapter I of the Vermont Constitution, as well as Amendments 5 and 14 of the United States Constitution. We agree with defendants that, as applied to them herein, § 3802 violates Chapter I, Article 7 of the Vermont Constitution. II.

At common law, landowners were under no affirmative duty to fence their lands unless such a duty was established by prescription or by an agreement between the interested parties. See 5 R. Powell, The Law of Real Property § 693 (1989). Rather, the common law encouraged landowners to fence their properties by creating strict liability for damages caused by trespassing animals. See, e.g., W. Keeton, Prosser and Keeton on the Law of Torts § 76 (5th ed. 1984). Ultimately, Vermont, like many other states, enacted laws to incorporate a duty to fence into the statutes. The first version of our fence law was adopted in 1780. The modern version of this law, which is very similar to the original act, is now codified in chapter 109 of Title 24.

Under the present statutory scheme, owners or occupants of adjoining lands, where the adjoining lands are actually occupied, are responsible for making and maintaining "equal portions" of the division fence between their lands. 24 V.S.A. § 3802. The owner of land which is both "unimproved and unoccupied" is likewise responsible for his portion of the division fence, unless the local selectmen on application by either party decide that he "ought not to be compelled" to contribute to it. Id. In that event, the owner of the adjacent occupied land "may make the whole or such part" of the fence "as is necessary to protect himself," and if the other land ever becomes occupied "so as to be benefited by such fence," that land's owner must reimburse his neighbor for his portion of the fence. Id. § 3803. The statutory scheme further provides that where adjoining properties do not have a division fence, neither party may pasture animals until they agree to do so without a fence, and if they fail to agree, then the fence viewers shall decide the number of animals each party may put upon the land. Id. § 3804.

Where the lands of two or more individuals are not required to be fenced, each of them is liable for damages caused by his animals to others' occupied lands. Id. § 3807. This principle is in accord with common law principles of liability for straying animals. W. Keeton, supra, § 76. If a person fails to maintain his portion of a division fence, however, he will be liable for damages "done to or suffered by" his neighbor "in consequence of such neglect." 24 V.S.A. § 3808. This departure from the common law's strict liability for one's own animals has been construed as meaning that if A's livestock stray onto B's property due to B's failure to maintain his portion of the division fence, B cannot recover for any damages. See, e.g., Scott v. Grover, 56 Vt. 499, 501-02 (1884). In fact, in such a situation A can recover for any damages his livestock sustained while on B's property. See, e.g., Saxton v. Bacon, 31 Vt. 540, 546-47 (1859) (defendant liable where plaintiff's horses, which escaped onto defendant's land through portion of fence for which defendant was responsible, were gored by defendant's bull).

III.

Plaintiffs and amicus State of Vermont both contend that Vermont's fence law is a justifiable application of the state's police power, which has been defined as "the governmental power of conserving and safeguarding the public safety, health, and welfare." State v. Quattropani, 99 Vt. 360, 363, 133 A. 352, 353 (1926). Relying on a "rational basis" standard, the trial court upheld the law against defendants' constitutional attacks because, in its opinion, sufficient "benefits" flow from the fence law to make it neither arbitrary nor capricious. The court found the following benefits:

(1) Freedom from unwanted intrusion by a neighbor's cattle.

(2) Freedom from trespassing neighbors and an increase in privacy.

(3) Elimination of "devil's lanes," unoccupied spaces between separate fences constructed by hostile neighbors.

(4) Diminution of lawsuits arising out of damage caused by straying cows.

(5) Discouragement of litigation by clearly marking the boundaries of rural lands.

(6) Increase in value of all land by fostering the continued vitality of agriculture.

In reaching its decision, the trial court rejected the relatively recent case of Sweeney v. Murphy, 39 A.D.2d 306, 334 N.Y.S.2d 239 (1972), aff'd, 31 N.Y.2d 1042, 294 N.E.2d 855, 342 N.Y.S.2d 70 (1973), which struck down the New York fence law. The New York law invalidated by Sweeney was substantially similar to the Vermont law, providing that "owner[s] of two adjoining tracts of land, except when they otherwise agree, shall make and maintain a just and equitable portion of the division fence between such lands." Id. at 307, 334 N.Y.S.2d at 240. In that case, plaintiffs resided on 158 acres of land, of which they cultivated ten acres; they kept no livestock. Defendants operated an adjoining dairy farm and grazed 110 milk cows. The parties shared a common boundary 2200 feet in length.

In holding the New York fence law unconstitutional, the court stated that despite the presumption of the statute's validity,

"[A] statute whose effect is to curtail the liberty of individuals to live their lives as they would and whose justification is claimed to lie in the exercise of the police power of the State must bear a reasonable relationship to, some proportion to, the alleged public good on account of which this restriction on individual liberty would be justified."

Id. at 308, 334 N.Y.S.2d at 241 (quoting Fenster v. Leary, 20 N.Y.2d 309, 314, 282 N.Y.S.2d 739, 743, 229 N.E.2d 426, 429 (1967)). Even assuming a benefit to the general public, the court held that requiring one landowner who does not keep livestock to share the cost of a fence for his neighbor's benefit was "not reasonably necessary to any legitimate public purpose" and was "oppressive." Id. at 308, 334 N.Y.S.2d at 242.

While defendants herein argue for the applicability of the New York court's analysis in Sweeney v. Murphy, plaintiffs and amicus point to the case of Glass v. Dryden, 18 Ohio St.2d 149, 248 N.E.2d 54 (1969), as support for the trial court's decision. They contend that under the analysis set forth in that case, defendants received a benefit from the fence sufficient to withstand constitutional attack. In Glass, the Ohio Supreme Court denied plaintiff an injunction against the actions of that state's equivalent of fence viewers in assigning shares of partition fences to neighboring landowners. The court held that the plaintiff had failed to prove that the cost of compliance with the payment order would exceed the difference between her land's value before and after the installation of the fence. Id. at 151, 248 N.E.2d at 55-56.

We find Glass to be inapposite. Glass did not entail a constitutional challenge to the entire scheme of Ohio's fence law. See id. at 150, 248 N.E.2d at 55 ("The principal issue in this case is confined to a narrow corridor. Appellee has never urged, nor did the Court of Appeals hold, that [Ohio's fence law] is invalid per se...."). Instead, pla...