Holly Hill Farm Corp. v. Rowe, No. 901208

Docket NºNo. 901208
Citation404 S.E.2d 48, 241 Va. 425
Case DateApril 19, 1991
CourtSupreme Court of Virginia

Page 48

404 S.E.2d 48
241 Va. 425
HOLLY HILL FARM CORPORATION

v.
Dorothy M. ROWE, et al.
Record No. 901208.
Supreme Court of Virginia.
April 19, 1991.

[241 Va. 427] George A. Somerville (Robert L. Brooke, Robert A. Canfield, Mays & Valentine, Canfield, Moore & Shapiro, Richmond, on briefs), for appellant.

Edward Stehl, III, Bowling Green, on brief, for appellees.

[241 Va. 425] Present: All the Justices.

[241 Va. 427] COMPTON, Justice.

The question we confront in this declaratory judgment proceeding is whether the trial court erred in declaring a portion of Virginia's division fence law unconstitutional special legislation, as applied to a particular group of landowners.

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

In Virginia, with certain exceptions not pertinent here, the common-law rule is not in force. Landowners must protect their crops against trespassing cattle by erecting a fence. Livestock owners are not required to enclose their land, and generally are not liable for damage caused by their trespassing animals unless they go upon land enclosed by a lawful fence. The reason assigned for adoption of this so-called "fence out" legislation is that the common-law rule "was not adapted to the nature and conditions of the country at the time of its settlement; that fencing materials were scarce; that there was a vast extent of land not occupied or cultivated, chiefly valuable for pasturage; and that the public

Page 49

interests would be best subserved by requiring each landowner to protect his crops by proper enclosures." Id. The General Assembly enacted "fence out" legislation as early as 1631: "EVERY man shall enclose his ground with sufficient fences uppon theire owne perill." 1 Hen.Stat., Act LXIII (1631-32) at 176 (1823).

[241 Va. 428] In 1887, the General Assembly enacted a division fence law and provided a means whereby a landowner who desired to construct a fence between his property and that of an adjoining landowner could compel the latter to bear a "just proportion" of the expense of building and maintaining the fence. See Code of 1887, §§ 2053 to -2059. The 1887 law also permitted a landowner to avoid payment of the pro rata cost of erecting a division fence by choosing to allow the land to "lie open" and to remain unenclosed. Id. at § 2053.

The division fence law, now Code §§ 55-317 to -322, has been amended over the years since 1887. This controversy arises from an amendment enacted in 1970. Acts 1970, ch. 713. Currently, § 55-317 provides, with the 1970 amendment italicized:

"Adjoining landowners shall build and maintain, at their joint and equal expense, division fences between their lands, unless one of them shall choose to let his land lie open as hereinafter provided for, or unless they shall otherwise agree between themselves. No owner of land used for industrial or commercial purposes, or subdivided into lots or parcels, adjoining lands used for agricultural purposes, when given notice by the owner of such adjoining lands under § 55-318 shall have the option of choosing to let his land lie open, but shall build one-half of such fence or be liable therefor.

"Proceedings for the erection and repair of such fences shall be as set forth in the following sections."

Section 55-318 establishes the procedure to be used to force an adjoining landowner "to come forward and build his half" of a division fence.

The facts are undisputed. Appellant Holly Hill Farm Corporation operates a large cattle farm in Caroline County. In September 1989, Holly Hill filed several separate actions in the court below against appellees Dorothy M. Rowe, Dorothy Rowe Gravatt, Mary Frances Rowe Taylor, Frank B. Proctor, Lillie C. Proctor, and Frances R. Lambert (the Neighbors). In those actions, Holly Hill alleged that the Neighbors lived on subdivided property adjoining Holly Hill Farm, and that Holly Hill desired and intended to build a division fence between its land and the land of the Neighbors, invoking the provisions of the division fence law. Holly Hill asked the Neighbors to participate in the construction of the [241 Va. 429] fence and to pay half of the cost of erecting the fence. Asserting that the Neighbors had refused to contribute or participate in the construction, Holly Hill sought an award from each Neighbor of half the cost of erecting the division fence between the Farm and the particular Neighbor's property. Responding, the Neighbors denied any indebtedness to Holly Hill and stated they desired their land to lie open.

In December 1989, while the actions initiated by Holly Hill were pending, the Neighbors filed the present declaratory judgment proceeding asking the court to declare § 55-317 "unconstitutional as applied to them." Subsequently, after an April 1990 hearing, the trial court issued a letter opinion declaring "that the opt-out provision of the division fence law, as applied to owners of subdivided lots, is special legislation, and is therefore unconstitutional."

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

On appeal, Holly Hill contends that the trial court erred in declaring the subject enactments unconstitutional as applied to the Neighbors. Particularly, Holly Hill argues that the trial court erred in determining that the second sentence of § 55-317, which denies "opt-out" privileges to three types of owners, constitutes special legislation;

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is arbitrary, unreasonable, and oppressive; and violates the applicable provisions of the Constitution of Virginia. We agree with Holly Hill.

The Constitution provides, as pertinent, that the "General Assembly shall not enact any local, special, or private law ... [g]ranting to any private corporation, association, or individual any special or exclusive right, privilege, or immunity." Va. Const. art. IV, § 14(18). In addition, the Constitution also provides that in all cases enumerated in the foregoing section "and in every other case which, in its judgment, may be provided for by general laws, the General Assembly shall enact general laws." Va. Const. art. IV, § 15. Also, the Constitution provides: "Any general law shall be subject to amendment or repeal, but the amendment or partial repeal thereof shall not operate directly or indirectly to enact, and shall not have the...

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12 practice notes
  • Washington v. Com., Record No. 1734-03-4.
    • United States
    • Virginia Supreme Court of Virginia
    • August 9, 2005
    ...42 Va.App. 264, 280, 590 S.E.2d 631, 640 (2004), under the subtle "guise of judicial interpretation," Holly Hill Farm Corp. v. Rowe, 241 Va. 425, 431, 404 S.E.2d 48, 51 (1991). It may or may not be better public policy to structure recidivism proof differently. When interpreting statutes, h......
  • Laurels of Bon Air v. Medical Facilities, Record No. 1085-07-2.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 22, 2008
    ...omitted). Litigants challenging a statute as an illegitimate special law shoulder a "heavy burden," Holly Hill Farm Corp. v. Rowe, 241 Va. 425, 432, 404 S.E.2d 48, 51 (1991), one calculated to safeguard the maxim that all "legislative acts are `presumed to be constitutional,'" Boyd v. Count......
  • Tvardek v. Powhatan Vill. Homeowners Ass'n, Inc., Record No. 150456.
    • United States
    • Virginia Supreme Court of Virginia
    • February 12, 2016
    ...it takes us perilously close to rewriting the statute under the subtle "guise of judicial interpretation." Holly Hill Farm Corp. v. Rowe, 241 Va. 425, 431, 404 S.E.2d 48, 51 (1991). The fact that a defective certification might be viewed by a title examiner as effective does not make it so.......
  • Prince William County Sch. Bd. v. Rahim, Record No. 1737–10–2.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 12, 2011
    ...42 Va.App. 264, 280, 590 S.E.2d 631, 640 (2004), under the subtle “guise of judicial interpretation,” Holly Hill Farm Corp. v. Rowe, 241 Va. 425, 431, 404 S.E.2d 48, 51 (1991). The one canon of construction that precedes all others is that “courts must presume that a legislature says in a s......
  • Request a trial to view additional results
12 cases
  • Washington v. Com., Record No. 1734-03-4.
    • United States
    • Virginia Supreme Court of Virginia
    • August 9, 2005
    ...42 Va.App. 264, 280, 590 S.E.2d 631, 640 (2004), under the subtle "guise of judicial interpretation," Holly Hill Farm Corp. v. Rowe, 241 Va. 425, 431, 404 S.E.2d 48, 51 (1991). It may or may not be better public policy to structure recidivism proof differently. When interpreting statutes, h......
  • Laurels of Bon Air v. Medical Facilities, Record No. 1085-07-2.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 22, 2008
    ...omitted). Litigants challenging a statute as an illegitimate special law shoulder a "heavy burden," Holly Hill Farm Corp. v. Rowe, 241 Va. 425, 432, 404 S.E.2d 48, 51 (1991), one calculated to safeguard the maxim that all "legislative acts are `presumed to be constitutional,'" Boyd v. Count......
  • Tvardek v. Powhatan Vill. Homeowners Ass'n, Inc., Record No. 150456.
    • United States
    • Virginia Supreme Court of Virginia
    • February 12, 2016
    ...it takes us perilously close to rewriting the statute under the subtle "guise of judicial interpretation." Holly Hill Farm Corp. v. Rowe, 241 Va. 425, 431, 404 S.E.2d 48, 51 (1991). The fact that a defective certification might be viewed by a title examiner as effective does not make it so.......
  • Prince William County Sch. Bd. v. Rahim, Record No. 1737–10–2.
    • United States
    • Virginia Court of Appeals of Virginia
    • July 12, 2011
    ...42 Va.App. 264, 280, 590 S.E.2d 631, 640 (2004), under the subtle “guise of judicial interpretation,” Holly Hill Farm Corp. v. Rowe, 241 Va. 425, 431, 404 S.E.2d 48, 51 (1991). The one canon of construction that precedes all others is that “courts must presume that a legislature says in a s......
  • Request a trial to view additional results

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